District Court, plaintiff's reply brief in support of motion for an immediate declaration of unitary status; District Court, plaintiff's motion for protective order and for emergency hearing.

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<dcterms_description>This transcript was create using Optical Character Recognition (OCR) and may contain some errors. Hl::,RSCHEL H. PRIDAY ( 1922-1994) WILLIAM H. SUTTON, P.A. BYRON M. EISEMAN. JR., P.A. JOE D. BELL. P.A. )A. BUTTRY, P.A. FR KS. URSERY, P.A. OS DAVIS, JR., P.A. JAM . CLARK, JR., P.A. THOMAS P. LEGGETT, P.A. JOHN DEWEY WATSON. P.A. PAUL B. BENHAM Ill. P.A. LARRY W. BURKS, P.A. A. WYCK..LIPP NISBET, JR .. P.A. JAMES EDWARD HARRIS. P.A. J. PHILLIP MALCOM. P.A. JAMES M. SIMPSON. P.A. JAMES M. SAXTON, P.A. J. SHEPHERD RUSSELL Ill. P.A. DONALD H. BACON. P.A. WILLIAM THOMAS BAXTER. P.A. RICHARD D. TAYLOR. P.A. JOSEPH B. HURST, JR .. P.A. ELIZABETH ROBBEN MURRAY, P.A. CHRISTOPHER HELLER. P.A. LAURA HENSLEY SMITH, P.A. ROBERT S. SHAPER. P.A. WILLIAM M. GRIFFIN Ill, P.A. MICHAELS. MOORE, P.A. DIANE S. MACKEY, P.A. WALTER M. EBEL Ill , P.A. KEVIN A. CRASS, P.A. WILLIAM A. WADDELL. JR .. P.A. SCOTT J. LANCASTER. P.A. ROBERT B. BEACH, JR., P.A. J , LEE BROWN, P.A. JAMES C. BAKER, JR., P.A. HARRY A. LIGHT, P.A. SCOTT H. TUCKER, P.A. GUY ALTON WADE, P.A. PRICE C. GARONER. P.A. TONIA P. JONES, P.A. OAVlD 0 . WILSON, P.A. JEFFREY H. MOORE, P.A. DAVID M. GRAF, P.A. Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Attention: Linda Bryant Re: LRSD v. PCSSD Dear Linda: FRJDA Y ELDREDGE &amp; CLARK ATTORNEYS AT LAW A LIMITED LIABILITY PARTNERSHIP www.fridayfirm.com 2000 REGIONS CENTER 400 WEST CAPITOL LITTLE ROCK, ARKANSAS 72201-3493 TELEPHONE 501-376-2011 FAX 501-376-2147 3425 NORTH FUTRALL DRIVE . SUITE 103 FAYETTEVILLE, ARKANSAS 72703- 811 TELEPHONE 79 - 695-2011 FAX 479-695-2147 208 NORTH FIFTH STREET BLYTHEVILLE, ARKANSAS 72315 TELEPHONE 870-7622898 FAX 870-762-2918 June 12, 2002 CARLA GUNNELS SPAINHOUR. P.A. JOHN C. FENDLEY, JR., P.A. JON ANN ELIZABETH CONIGLIO. P.A. R. CHRISTOPHER LAWSON. P.A. FRANC. HICKMAN, P.A. BETTY J. DEMORY, P.A. LYNDA M. JOHNSON. P.A. JAMES W. SMITH, P.A. CLIFFORD W. PLUNKETT, P.A. DANIELL. HERRINGTON, P.A. MARVIN L. CHILDERS K. COLEMAN WESTBROOK, JR. ALLISON J. CORNWELL ELLEN M. OWENS JASON B. HENDREN BRUCE 8 . TIDWELL MICHAELE. KARNEY KELLY MURPHY MCQUEEN JOSEPH P. MCKAY ALEXANDRA A. IFRAH JAY T. TAYLOR MARTIN A. KASTEN RECEIVED JUN 1 ~ 2002 OFFICE OF DESEBREGATIOII MONITORING BRYAN W. DUKE JOSEPH G. NICHOLS ROBERT T. SMITH RYAN A. BOWMAN TIMOTHY C. EZELL T. MICHELLE ATOR KAREN S. HALBERT SARAH M. COTTON PHILIP 8 . MONTGOMERY KRISTEN S. RIGGINS ALAN G. BRYAN LINDSEY MITCHAM SLOAN KHAYYAM M. EDDINGS JOHN F. PEISERICH o t cOUNSEL D.S. CLARK WILLIAM L. TERRY WILLIAM L. PATTON, JR. H.T. LARZELERE. P.A. JOHN C. ECHOLS, P.A. A.O. MCALLISTER CHRISTOPHER HELLER LITTLE ROCK TEL 501-370-1509 FAX 501-244-534 heller@fec .net As you requested in our phone conversation of today, I have enclosed a copy of Plaintiffs Reply Brief in Support of Motion for an Immediate Declaration of Unitary Status reflecting a filing date of June 7, 2002. I have handwritten a corrected date of service on the last page. /bk Enc. Sincerely, ~ Brenda Kampman, Legal Assistant for Christopher Heller ,. - E.~,~::- . IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKl COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED JUN 1 3 2002 omcEoF DESEGREGATION MONITORING PLAINTIFF'S REPLY BRIEF IN SUPPORT OF DEFENDANTS INTERVENORS INTER VEN ORS MOTION FOR AN IMMEDIATE DECLARATION OF UNITARY STATUS I. Revised Plan Sections Already Litigated. A. Revised Plan 2.12.2. 2. I 2.2: LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. The Revised Plan was approved by Judge Wright on the joint motion of the LRSD and Joshua on April 10, 1998. Over three years later, the Joshua Intervenors ("Joshua") objected to the LRSD being granted unitary status. In their objections filed June 25, 2001 , Joshua made no reference to Revised Plan 2.12.2. Yet, Joshua now argues that 2.12.2 obligated the LRSD to investigate, reduce and/or eliminate the racial disparity in discipline and achievement. This argument should be rejected as untimely, inconsistent with the plain language of 2.12.2 and contrary to the interpretation given 2.12.2 by the parties during the term of the Revised Plan. Joshua's argument is untimely because they raised no objection to the LRSD's compliance with 2.12.2 in their objections filed June 25, 2001 . Joshua's argument is also inconsistent with the plain language of 2.12.2 which limits application of the provision to "programs and activities." Discipline and achievement cannot fairly be construed as "programs" or "activities." ' .'!SAS ~-.:..:... Finally, neither the LRSD nor Joshua interpreted 2.12.2 as requiring investigation of the - racial disparities in discipline and achievement during the term of the Revised Plan. See AMI Civil 41\ 3015 (Supp. 200l)("You should give weight to the meaning placed on the language by the parties themselves, as shown by their statements, acts, or conduct after the contract was made."). The LRSD's obligations with regard to discipline and achievement were specifically set forth in 2.5 and 2.7, respectively. Those sections set forth Joshua's entire "remedy" relat~d to discipline and achievement issues. Revised Plan 2.12.2 was intended to address racial disparities "in programs and activities" which might arise but were not otherwise covered by the Revised Plan. See AMI Civil 41\ 3021 (Supp. 2001)("If there is a contradiction between general provisions and more detailed, specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions."). Joshua's current interpretation of 2.12.2 was never brought to the attention of the LRSD during the term of the Revised Plan. Joshua knew no later than March of2000 that the LRSD was not "investigating" the racial disparity in discipline and achievement. Joshua's silence - precludes it from arguing for a contrary interpretation after complete performance by the LRSD. See Waste Management of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1144-45 (6th Cir. 1997)(recognizing a district court's jurisdiction to consider whether the equitable principle of estoppel has altered a parties obligations and duties under a consent decree); U.S. v. City of Fort Smith, 760 F.2d 231 , 233-34 (8th Cir. 1985)("We note that, for purposes of enforcement, consent decrees are to be construed as contracts."); Bharodia v. Pledger, 66 Ark. App. 349,355, 990 S.W.2d 581 , 585 (1999)("It has also been held that a party with knowledge of a breach of contract by the other party waives the right to insist on a forfeiture when he allows the other party to continue in performance of the contract."); Stephens v. West Pontiac-GMC, Inc., 7 Ark. App. 275,278, 647 S.W.2d 492,493 (1983)("The rule is that a party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and 2 suffers the other party to continue in performance thereof, waives the right to insist on the - breach."). In fact, Joshua's belated assertion that 2.12.2 applied to the racial disparity in discipline and achievement represents an effort by Joshua to shed the burden of proof they accepted in Revised Plan 11. Joshua clearly failed to meet their burden of establishing that the current racial disparities in discipline and achievement resulted from discrimination by the LRSD. Recognizing this failure, Joshua argues that 2.12.2 obligated the LRSD to determine the cause of these disparities. For the reasons set forth above, this argument is without merit. Discipline and achievement are not "programs" or "activities." Consequently, Revised Plan 2.12.2 is irrelevant to the LRSD's compliance with Revised Plan 2.5 and 2.7. A. Revised Plan 2.7: Academic Achievement. LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan. Joshua argues that "[t]he LRSD did not develop any particular program designed to remedy [the] achievement disparity between black and white pupils." Joshua's Response, p. 52. This is not true. The LRSD implemented programs designed to improve and remediate AfricanAmerican achievement, as required by the Revised Plan. Dr. Carnine testified as follows: Q. I see. Did you adopt a single program by which to narrow the achievement gap between black -- the academic achievement between black and white students, as set forth in the Settlement Agreement which we signed? A single program, Doctor, one program, did you do that? A. Ifl may, I am going to say yes, because I believe ultimately ifwe remediate achievement, that the gap will, in fact, close. Tr. July 6, 2001, p. 378. Dr. Camine's response can be best understood when considered in light of the Court's comments which immediately preceded it. As in their Response, Joshua insisted at the hearing of talking about reducing the disparity, rather than improving African-American achievement. 3 Judge Wright interrupted Joshua's cross-examination of Dr. Carnine when counsel for Joshua - refused to recognize the distinction and stated: THE COURT: All right. I want to just again, and I don't want you to - I don't want you to get into an argument with him. But this witness takes the position that there is a difference between raising the achievement level of minority students and closing the disparity - the achievement gap. MR. W Al.KER: I understand, and that - THE COURT: And in his defense, I am not trying to take his side in this matter, I am trying to be a fair Judge, but in his defense, Section 2.7 of this plan requires the District to "implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students" . . .. And so, what he is going to testify -- what he wants to testify to is not reducing the disparity, but increasing African-American achievement. And I am going to -- based on the language of the plan, I am going to let him stick to that. MR. WALKER: That's fine. Tr. July 6, 2001, pp. 376-77. Despite Judge Wright's admonishment, counsel for Joshua continued to question Dr. Carnine about the "achievement gap," leading to Dr. Camine's testimony that improving African-American achievement should narrow the racial disparity in - achievement. Dr. Carnine testified that the Revised Plan's approach to reducing the racial disparity in achievement was to implement programs designed to improve African-American achievement. Tr. July 6, 2001, pp. 450-52. Dr. Carnine further testified that Joshua accepted that approach when they agreed to the Revised Plan. Tr. July 6, 2001, p. 452. The parties' joint brief seeking approval of the Revised Plan supports Dr. Carnine's testimony. In that brief, the parties stated, "With regard to the achievement disparity, the January 16 Revised Plan recognizes that the only legitimate means to eliminate the racial disparity in achievement is by improving AfricanAmerican achievement." See Docket No. 3108, p. 2 ( emphasis supplied). Therefore, there is no merit to Joshua's argument that the LRSD did not implement programs designed to eliminate the racial disparity in achievement. The LRSD did exactly what 4 the Revised Plan called for in that regard - it implemented programs designed to improve and - remediate African-American achievement. Joshua also argues that "implementation fell short in areas deemed significant by [the] LRSD .... " Joshua's Response, p. 51. To support this argument, Joshua primarily relies on the LRSD's Interim Report and Final Report which detail the implementation status of the District's comprehensive curriculum reforms. Joshua's argument fails to recognize that implementation of new curriculum programs is a process, not an event. Joshua's argument suggests that the Revised Plan required everything to be implemented on day one. If Joshua really believed this, they should have objected no later than when the LRSD filed its Interim Report, on which they rely heavily in their Response. They never objected to the status of the LRSD's implementation during the Revised Plan's term and should be estopped from objecting after the LRSD has completed performance. See Waste Management, City of Fort Smith, Bharodia and Stephens, Joshua bore the burden of establishing the LRSD's noncompliance with Revised Plan - 2.7. See Revised Plan, 11. To meet this burden based on the racial disparity in achievement required that Joshua come forward with evidence that the disparity resulted from the LRSD's noncompliance, rather than other factors. See People Who Care v. Rockford Bd. of Educ., 246 F.3d 1073, 1076-77 (7th Cir. 2001 ). In their Response, Joshua does not even argue that they met this burden. Rather, Joshua argues that Revised Plan 2.12.2 placed the burden on the LRSD to determine the cause of the racial disparity in achievement and implement a remedy. For the reasons discussed above, that argument is wholly without merit. The LRSD agreed to implement programs, policies and procedures designed to improve African-American achievement, and it has done so. Accordingly, the LRSD should be declared unitary and released from court supervision in the area of student achievement. See Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430 (1992)("Partial relinquishment of judicial control, where justified by the facts of the 5 case, can be an important step in fulfilling the district court's duty to return the operations and - control of schools to local authorities."). B. Revised Plan 2. 7 .1 : Program Assessment. LRSD shall assess the academic programs implemented pursuant to Section 2. 7 after each year in order to determine the effectiveness of the academic programs in improving AfricanAmerican achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. Joshua's Response on this issue begins by misstating the LRSD's position. The LRSD does not contend that all it had to do to comply with 2. 7 .1 was administer annual assessments to students. That was step one in a two step process. The second step was using the assessment data "to determine the effectiveness of the academic programs in improving African-American achievement." See Revised Plan, 2.7.1. See Tr. Nov. 19, 2001, p. 246. The LRSD did this, and Dr. Lesley provided the Court with several examples of program changes made by the LRSD based on the annual assessment data. See Tr. Nov. 19, 2001, pp. 247-75. - The distinction to be made is between an informal evaluation made using the annual assessment data and a formal, written program evaluation. The LRSD did both, although 2.7.1 only required the former. The formal, written program evaluations conducted pursuant to the Revised Plan were referred to as the Board-adopted Research Agenda. See Interim Report, p. 53. Joshua's outline of the various documents detailing the LRSD's efforts to comply with 2. 7. I completely ignores ODM's August 11, 1999 monitoring report. Joshua knew or should have known upon publication of that report that the LRSD did not intend to prepare a formal program evaluation every year for every program in the District affecting African-American achievement; yet, Joshua raised no objection. See Tr. Nov. 20, 2001, pp. 370-71; Docket No. 3289, ODM Report, August 11, 1999, p. 43. The LRSD's March 2000 Interim Report again detailed the LRSD's plans for complying with 2.7.1. Again, Joshua raised no objection. If 6 Joshua believed the LRSD had an obligation to do more, then Joshua had an obligation to put the - LRSD on notice of that belief. Since they did not, they are estopped arguing that what the LRSD did was not enough. See Waste Management, City of Fort Smith, Bharodia and Stephens, supra. The LRSD substantially complied with Revised Plan 2.7.1, and accordingly, should be declared unitary and released from court supervision with regard thereto. See Freeman, 503 U.S. at 489. C. Revised Plan 2.5 - 2.5.4: Student Discipline. Joshua concedes that "(t]here is no predicate for the court to find a lack of substantial compliance with Sections 2.5.1, 2.5.2 and 2.5.3 of the revised plan." Joshua focuses its attack on Revised Plan 2.5 and 2.5.4. Each of these sections will be discussed in tum below. 1. 2.5. LRSD shall implement programs, policies and/or procedures designed to ensure that there is no racial discrimination with regard to student discipline. Joshua bore the burden of establishing the LRSD's noncompliance with Revised Plan 2.5. See Revised Plan, 11. To meet this burden based on the racial disparity in discipline required that Joshua come forward with evidence that the disparity resulted from systematic discrimination by the LRSD's in the imposition of discipline. See People Who Care, 246 F.3d at 1076-77 (achievement disparity). In their Response, Joshua does not even argue that they met this burden. Rather, Joshua argues that Revised Plan 2.12.2 placed the burden on the LRSD to determine the cause of the racial disparity in discipline and implement a remedy. For the reasons discussed above, that argument is wholly without merit. Joshua came forward with no evidence ofracial discrimination by the LRSD, and accordingly, the LRSD should be declared unitary and released from court supervision with regard to Revised Plan 2.5. See Freeman, 503 U.S. at 489. Joshua takes out of context Dr. Linda Watson's testimony concerning the ODM's June 14, 2000, monitoring report on student discipline. See CX 583. Joshua would have this Court believe that the District and Dr. Watson completely ignored the report. While it is true that 7 Superintendent Carnine instructed Dr. Watson not to prepare a formal response to the report, Tr. - Nov. 19, 2001, p. 178, Dr. Watson explained in her testimony what the District did to address each ofODM's recommendations. Tr. Nov. 19, 2001, pp. 85-102. Even if the LRSD had completely ignored the report, the Revised Plan did not require the LRSD to implement ODM's recommendations, and the report itself merely describes the recommendations as "suggestions." ex 583, p. 121. 2. 2.5.4. LRSD shall work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior. Joshua's argues that the District failed to meet its obligation under Revised Plan 2.5.4 based on evidence that the District did not maintain a document compiling the total number of behavior modification plans developed and that the District did not prepare a document entitled, "Monitoring Report of Behavior Modification Plans." The Revised Plan required neither. Joshua bore the burden of proof. See Revised Plan 11. There was no evidence that any student who needed a behavior modification plan did not get one. Dr. Watson testified that she reversed - suspensions and sent students back to school to do a behavior modification plans when necessary. Tr. Nov. 19, 2001, p. 136. The fact that the LRSD did not keep a list of all students with behavior modification plans falls far short of establishing noncompliance with 2.5.4. Therefore, the LRSD should be declared unitary with regard to student discipline. See Freeman, 503 U.S. at 489. D. Conclusion. Joshua concludes its discipline argument with the statement that "Dr. Watson had a vast array of responsibilities, more than one person could reasonably be expected to accomplish." Joshua's Brief, p. 15. What Joshua fails to comprehend is that this could just as easily be said about most of the District's administrators, principals and teachers. The LRSD agrees that there were things it could have done better. It said as much in both the Interim Report and Final Report. While the LRSD strives for perfection, that is not the legal standard. See Belk v. 8 Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 335 (4th Cir. 2001) (Traxler, J.)("This is not - to say that CMS is a perfect school system - it is not."). The issue before this Court is whether the LRSD Board of Directors can be trusted comply with the Constitution absent court supervision. See Cody v. Hillard, 139 F.3d 1197, 1199 (8th Cir. 1998). Joshua came forward with no evidence that they could not, and as a result, the LRSD is entitled to an order granting unitary status in accordance with Revised Plan 11. II. Summary Judgment. The LRSD moved for summary judgment with regard to those Revised Plan sections which were timely challenged by Joshua but which have not yet been litigated. The summary judgment process may be used to terminate a consent decree without an evidentiary hearing. See Cody, 139 F.3d at 1200 ("They do not cite any cases stating that a hearing is a necessary prerequisite to terminating supervision of a decree . . . . At any rate, the necessity of a hearing depends on whether there are disputed factual issues."). Summary judgment is appropriate when the Court finds that there is no genuine issue as to any material fact and that the moving party is - entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion and of identifying those parts of the record which demonstrate absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The LRSD met its burden by pointing out that there is no evidence of noncompliance sufficient to cast doubt on the District's intent to comply with the Constitution absent court supervision. See Cody, 139 F.3d at 1199. This shifted the burden to Joshua to come forward with such evidence. See Matushita Blee. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1989). Joshua failed to meet their burden. Moreover, Joshua's failure to controvert the LRSD's Statement of Material Facts Not in Dispute means that those facts are deemed admitted. See Rule 56. l(c) of the Rules for the 9 United States District Court for the Eastern and Western Districts of Arkansas. Based on those - facts, the LRSD should be granted summary judgment with regard to all remaining issues. Joshua does not even purport to respond to the LRSD's motion for summary judgment. Rather, Joshua notes that the Court has already scheduled a hearing on the remaining Revised Plan sections to be litigated - as if this negated the need for them to respond. The summary judgment process is designed to determine whether a factual dispute exists which requires an' evidentiary hearing. Joshua failed to come forward with evidence establishing a factual dispute, and therefore, the LRSD should be granted summary judgment. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRlDA Y, ELDREDGE &amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 ------ CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on Mareh 15, 2002: ~ '1 ~o1);)-. Mr. John W. Walker J- J JOHNW. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 - Ms. Ann Marshall (hand-delivered) Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagemeier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Robert Pressman 22 Locust A venue Lexington, MA 02421 11 RECEIVED IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL PLAINTIFF'S REPLY BRIEF IN SUPPORT OF JUN 11 2002 OFACEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS MOTION FOR AN IMMEDIATE DECLARATION OF UNIT ARY STATUS I. Revised Plan Sections Already Litigated. A. Revised Plan 2.12.2. 2.12.2: LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. The Revised Plan was approved by Judge Wright on the joint motion of the LRSD and Joshua on April 10, 1998. Over three years later, the Joshua Intervenors ("Joshua") objected to the LRSD being granted unitary status. In their objections filed June 25, 2001, Joshua made no reference to Revised Plan 2.12.2. Yet, Joshua now argues that 2.12.2 obligated the LRSD to investigate, reduce and/or eliminate the racial disparity in discipline and achievement. This argument should be rejected as untimely, inconsistent with the plain language of 2.12.2 and contrary to the interpretation given 2.12.2 by the parties during the term of the Revised Plan. Joshua's argument is untimely because they raised no objection to the LRSD's compliance with 2.12.2 in their objections filed June 25, 2001. Joshua's argument is also inconsistent with the plain language of 2.12.2 which limits application of the provision to "programs and activities." Discipline and achievement cannot fairly be construed as "programs" or "activities." Finally, neither the LRSD nor Joshua interpreted 2.12.2 as requiring investigation of the - racial disparities in discipline and achievement during the term of the Revised Plan. See AMI Civil 4th , 3015 (Supp. 2001)("You should give weight to the meaning placed on the language by the parties themselves, as shown by their statements, acts, or conduct after the contract was made."). The LRSD's obligations with regard to discipline and achievement were specifically set forth in 2.5 and 2.7, respectively. Those sections set forth Joshua's entire "remedy" related to discipline and achievement issues. Revised Plan 2.12.2 was intended to address racial disparities "in programs and activities" which might arise but were not otherwise covered by the Revised Plan. See AMI Civil 41\ 3021 (Supp. 2001)("Ifthere is a contradiction between general provisions and more detailed, specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions."). Joshua's current interpretation of 2.12.2 was never brought to the attention of the LRSD during the term of the Revised Plan. Joshua knew no later than March of2000 that the LRSD was not "investigating" the racial disparity in discipline and achievement. Joshua's silence - precludes it from arguing for a contrary interpretation after complete performance by the LRSD. See Waste Management of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1144-45 (6th Cir. l 997)(recognizing a district court's jurisdiction to consider whether the equitable principle of estoppel has altered a parties obligations and duties under a consent decree); U.S. v. City of Fort Smith, 760 F.2d 231, 233-34 (8th Cir. 1985)("We note that, for purposes of enforcement, consent decrees are to be construed as contracts."); Bharodia v. Pledger, 66 Ark. App. 349,355, 990 S.W.2d 581,585 (1999)("It has also been held that a party with knowledge of a breach of contract by the other party waives the right to insist on a forfeiture when he allows the other party to continue in performance of the contract."); Stephens v. West Pontiac-GMC, Inc., 7 Ark. App. 275,278, 647 S.W.2d 492,493 (1983)("The rule is that a party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and 2 suffers the other party to continue in performance thereof, waives the right to insist on the - breach."). In fact, Joshua's belated assertion that 2.12.2 applied to the racial disparity in discipline and achievement represents an effort by Joshua to shed the burden of proof they accepted in Revised Plan 11. Joshua clearly failed to meet their burden of establishing that the current racial disparities in discipline and achievement resulted from discrimination by the LRSD. Recognizing this failure, Joshua argues that 2.12.2 obligated the LRSD to determine the cause of these disparities. For the reasons set forth above, this argument is without merit. Discipline and achievement are not "programs" or "activities." Consequently, Revised Plan 2.12.2 is irrelevant to the LRSD's compliance with Revised Plan 2.5 and 2.7. A. Revised Plan 2.7: Academic Achievement. LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan. Joshua argues that "[t]he LRSD did not develop any particular program designed to remedy [the] achievement disparity between black and white pupils." Joshua's Response, p. 52. This is not true. The LRSD implemented programs designed to improve and remediate AfricanAmerican achievement, as required by the Revised Plan. Dr. Carnine testified as follows: Q. I see. Did you adopt a single program by which to narrow the achievement gap between black -- the academic achievement between black and white students, as set forth in the Settlement Agreement which we signed? A single program, Doctor, one program, did you do that? A. If I may, I am going to say yes, because I believe ultimately if we remediate achievement, that the gap will, in fact, close. Tr. July 6, 2001, p. 378. Dr. Carnine's response can be best understood when considered in light of the Court's comments which immediately preceded it. As in their Response, Joshua insisted at the hearing of talking about reducing the disparity, rather than improving African-American achievement. 3 Judge Wright interrupted Joshua's cross-examination of Dr. Carnine when counsel for Joshua - refused to recognize the distinction and stated: THE COURT: All right. I want to just again, and I don't want you to - I don't want you to get into an argument with him. But this witness takes the position that there is a difference between raising the achievement level of minority students and closing the disparity- the achievement gap. MR. WALKER: I understand, and that - THE COURT: And in his defense, I am not trying to take his side in this matter, I am trying to be a fair Judge, but in his defense, Section 2.7 ofthis plan requires the District to "implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students" .. . . And so, what he is going to testify-- what he wants to testify to is not reducing the disparity, but increasing African-American achievement. And I am going to -- based on the language of the plan, I am going to let him stick to that. MR. WALKER: That's fine. Tr. July 6, 2001, pp. 376-77. Despite Judge Wright's admonishment, counsel for Joshua continued to question Dr. Carnine about the "achievement gap," leading to Dr. Carnine's testimony that improving African-American achievement should narrow the racial disparity in - achievement. Dr. Carnine testified that the Revised Plan's approach to reducing the racial disparity in achievement was to implement programs designed to improve African-American achievement. Tr. July 6, 2001, pp. 450-52. Dr. Carnine further testified that Joshua accepted that approach when they agreed to the Revised Plan. Tr. July 6, 2001, p. 452. The parties' joint brief seeking approval of the Revised Plan supports Dr. Carnine's testimony. In that brief, the parties stated, "With regard to the achievement disparity, the January 16 Revised Plan recognizes that the only legitimate means to eliminate the racial disparity in achievement is by improving AfricanAmerican achievement." See Docket No. 3108, p. 2 ( emphasis supplied). Therefore, there is no merit to Joshua's argument that the LRSD did not implement programs designed to eliminate the racial disparity in achievement. The LRSD did exactly what 4 the Revised Plan called for in that regard - it implemented programs designed to improve and remediate African-American achievement. Joshua also argues that "implementation fell short in areas deemed significant by [the] LRSD ... . " Joshua's Response, p. 51 . To support this argument, Joshua primarily relies on the LRSD's Interim Report and Final Report which detail the implementation status of the District's comprehensive curriculum reforms. Joshua's argument fails to recognize that implementation of new curriculum programs is a process, not an event. Joshua's argument suggests that the Revised Plan required everything to be implemented on day one. If Joshua really believed this, they should have objected no later than when the LRSD filed its Interim Report, on which they rely heavily in their Response. They never objected to the status of the LRSD's implementation during the Revised Plan's term and should be estopped from objecting after the LRSD has completed performance. See Waste Management, City of Fort Smith, Bharodia and Stephens, supra. Joshua bore the burden of establishing the LRSD's noncompliance with Revised Plan - 2.7. See Revised Plan, 11. To meet this burden based on the racial disparity in achievement required that Joshua come forward with evidence that the disparity resulted from the LRSD's noncompliance, rather than other factors. See People Who Care v. Rockford Bd. of Educ., 246 F.3d 1073, 1076-77 (7th Cir. 2001). In their Response, Joshua does not even argue that they met this burden. Rather, Joshua argues that Revised Plan 2.12.2 placed the burden on the LRSD to determine the cause of the racial disparity in achievement and implement a remedy. For the reasons discussed above, that argument is wholly without merit. The LRSD agreed to implement programs, policies and procedures designed to improve African-American achievement, and it has done so. Accordingly, the LRSD should be declared unitary and released from court supervision in the area of student achievement. See Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430 (1992)("Partial relinquishment of judicial control, where justified by the facts of the 5 case, can be an important step in fulfilling the district court's duty to return the operations and - control of schools to local authorities."). B. Revised Plan 2. 7 .1 : Program Assessment. LRSD shall assess the academic programs implemented pursuant to Section 2. 7 after each year in order to determine the effectiveness of the academic programs in improving AfricanAmerican achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. Joshua's Response on this issue begins by misstating the LRSD's position. The LRSD does not contend that all it had to do to comply with 2. 7 .1 was administer annual assessments to students. That was step one in a two step process. The second step was using the assessment data "to determine the effectiveness of the academic programs in improving African-American achievement." See Revised Plan, 2.7.1. See Tr. Nov. 19, 2001, p. 246. The LRSD did this, and Dr. Lesley provided the Court with several examples of program changes made by the LRSD based on the annual assessment data. See Tr. Nov. 19, 2001, pp. 247-75 . - The distinction to be made is between an informal evaluation made using the annual assessment data and a formal, written program evaluation. The LRSD did both, although 2. 7 .1 only required the former. The formal, written program evaluations conducted pursuant to the Revised Plan were referred to as the Board-adopted Research Agenda. See Interim Report, p. 53. Joshua's outline of the various documents detailing the LRSD's efforts to comply with 2.7.1 completely ignores ODM's August 11 , 1999 monitoring report. Joshua knew or should have known upon publication of that report that the LRSD did not intend to prepare a formal program evaluation every year for every program in the District affecting African-American achievement; yet, Joshua raised no objection. See Tr. Nov. 20, 2001, pp. 370-71 ; Docket No. 3289, ODM Report, August 11, 1999, p. 43. The LRSD's March 2000 Interim Report again detailed the LRSD's plans for complying with 2.7.1. Again, Joshua raised no objection. If 6 Joshua believed the LRSD had an obligation to do more, then Joshua had an obligation to put the - LRSD on notice of that belief. Since they did not, they are estopped arguing that what the LRSD did was not enough. See Waste Management, City of Fort Smith, Bharodia and Stephens, supra. The LRSD substantially complied with Revised Plan 2. 7 .1, and accordingly, should be declared unitary and released from court supervision with regard thereto. See Freeman, 503 U.S. at 489. C. Revised Plan 2.5 - 2.5.4: Student Discipline. Joshua concedes that "[t]here is no predicate for the court to find a lack of substantial compliance with Sections 2.5.1, 2.5.2 and 2.5.3 of the revised plan." Joshua focuses its attack on Revised Plan 2.5 and 2.5.4. Each of these sections will be discussed in turn below. 1. 2.5. LRSD shall implement programs, policies and/or procedures designed to ensure that there is no racial discrimination with regard to student discipline. Joshua bore the burden of establishing the LRSD's noncompliance with Revised Plan 2.5. See Revised Plan, 11. To meet this burden based on the racial disparity in discipline required that Joshua come forward with evidence that the disparity resulted from systematic discrimination by the LRSD's in the imposition of discipline. See People Who Care, 246 F.3d at 1076-77 (achievement disparity). In their Response, Joshua does not even argue that they met this burden. Rather, Joshua argues that Revised Plan 2.12.2 placed the burden on the LRSD to determine the cause of the racial disparity in discipline and implement a remedy. For the reasons discussed above, that argument is wholly without merit. Joshua came forward with no evidence ofracial discrimination by the LRSD, and accordingly, the LRSD should be declared unitary and released from court supervision with regard to Revised Plan 2.5. See Freeman, 503 U.S. at 489. Joshua takes out of context Dr. Linda Watson's testimony concerning the OD M's June 14, 2000, monitoring report on student discipline. See CX 583. Joshua would have this Court believe that the District and Dr. Watson completely ignored the report. While it is true that 7 Superintendent Carnine instructed Dr. Watson not to prepare a formal response to the report, Tr. - Nov. 19, 2001 , p. 178, Dr. Watson explained in her testimony what the District did to address each ofODM's recommendations. Tr. Nov. 19, 2001, pp. 85-102. Even if the LRSD had completely ignored the report, the Revised Plan did not require the LRSD to implement ODM's recommendations, and the report itself merely describes the recommendations as "suggestions." ex 583, p. 121. 2. 2.5.4. LRSD shall work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior. Joshua's argues that the District failed to meet its obligation under Revised Plan 2.5.4 based on evidence that the District did not maintain a document compiling the total number of behavior modification plans developed and that the District did not prepare a document entitled, "Monitoring Report of Behavior Modification Plans." The Revised Plan required neither. Joshua bore the burden of proof. See Revised Plan 11. There was no evidence that any student who needed a behavior modification plan did not get one. Dr. Watson testified that she reversed - suspensions and sent students back to school to do a behavior modification plans when necessary. Tr. Nov. 19, 2001, p. 136. The fact that the LRSD did not keep a list of all students with behavior modification plans falls far short of establishing noncompliance with 2.5.4. Therefore, the LRSD should be declared unitary with regard to student discipline. See Freeman, 503 U.S. at 489. D. Conclusion. Joshua concludes its discipline argument with the statement that "Dr. Watson had a vast array ofresponsibilities, more than one person could reasonably be expected to accomplish." Joshua's Brief, p. 15. What Joshua fails to comprehend is that this could just as easily be said about most of the District's administrators, principals and teachers. The LRSD agrees that there were things it could have done better. It said as much in both the Interim Report and Final Report. While the LRSD strives for perfection, that is not the legal standard. See Belk v. 8 Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 335 (4th Cir. 2001) (Traxler, J.)("This is not - to say that CMS is a perfect school system - it is not."). The issue before this Court is whether the LRSD Board of Directors can be trusted comply with the Constitution absent court supervision. See Cody v. Hillard, 139 F.3d 1197, 1199 (8th Cir. 1998). Joshua came forward with no evidence that they could not, and as a result, the LRSD is entitled to an order granting unitary status in accordance with Revised Plan 11 . II. Summary Judgment. The LRSD moved for summary judgment with regard to those Revised Plan sections which were timely challenged by Joshua but which have not yet been litigated. The summary judgment process may be used to terminate a consent decree without an evidentiary hearing. See Cody. 139 F.3d at 1200 ("They do not cite any cases stating that a hearing is a necessary prerequisite to terminating supervision of a decree . . . . At any rate, the necessity of a hearing depends on whether there are disputed factual issues."). Summary judgment is appropriate when the Court finds that there is no genuine issue as to any material fact and that the moving party is - entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c); Celotex Com. v. Catrett, 477 U.S. 317,323 (1986). The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion and of identifying those parts of the record which demonstrate absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The LRSD met its burden by pointing out that there is no evidence of noncompliance sufficient to cast doubt on the District's intent to comply with the Constitution absent court supervision. See Cody. 139 F.3d at 1199. This shifted the burden to Joshua to come forward with such evidence. See Matushita Elec. Indus. Co., Ltd. v. Zenith Radio Com., 475 U.S. 574, 585-87 (1989). Joshua failed to meet their burden. Moreover, Joshua's failure to controvert the LRSD's Statement of Material Facts Not in Dispute means that those facts are deemed admitted. See Rule 56.l(c) of the Rules for the 9 United States District Court for the Eastern and Western Districts of Arkansas. Based on those - facts, the LRSD should be granted summary judgment with regard to all remaining issues. Joshua does not even purport to respond to the LRSD's motion for summary judgment. Rather, Joshua notes that the Court has already scheduled a hearing on the remaining Revised Plan sections to be litigated - as if this negated the need for them to respond. The summary judgment process is designed to determine whether a factual dispute exists which requires an evidentiary hearing. Joshua failed to come forward with evidence establishing a factual dispute, and therefore, the LRSD should be granted summary judgment. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE &amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-20-1-1 -- CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on Match 15,-2002: ;;"1&lt; 1 ~Oc) 2,, Mr. John W. Walker 1 JOHN W. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 - Ms. Ann Marshall (hand-delivered) Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagemeier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Robert Pressman 22 Locust A venue Lexington, MA 02421 11 .t'.IUDAY ELDREDGE &amp; CLARK IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA. ET AL KATI:IERINE KNIGIIT, ET AL PLAlNTIFF'S MOTION FOR PROTECTIVE ORDER ANDFOREMERGENCYHEARING ~002/ 041 PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Plaintiff Little Rock School District (''LRSD") for its Motion for Protective Order and for Emergency Hearing states: 1. LRSD seeks a protective order to prevent unduly burdensome and harassing - discovery being conducted by the Joshua Intervenors ("Joshua") via the Ar.kansas Freedom of Infonnation Act ("FOIA"), Ark. Code Ann. 25-19-101 through 25-19-110. 2. The FOIA requests submitted by or on behalf of Joshua are attached hereto as Exhibit 1. Also included in Exhibit 1 are requests for information made by Joshua which did not specifically refer to the FOIA and correspondence with Joshua seeking to resolve this issue without Court intervention. 3. Joshua first sent requests for information on Joshua's counsel's letterhead signed by Joy Springer. Those requests did not mention the Arkansas Freedom of Information Act. LRSD responded that the District,.would treat those requests as discovery requests pursuant to the Federal Rules of Civil Procedure and respond to them accordingly. Joshua then requested generally the same information in a request made pursuant to the Arkansas Freedom of Information Act on the personal stationary of Ms. Springer. On information and belief, Joshua vo 1 ,:;0 1 ,:;vv,:; J.O : J4 .t'AA :&gt;VJ. J'ftj ll47 t .. .lUDAY ELDREDGE &amp; CLARK ~ 003 / 041 - also caused a request identical to the one submitted by Ms. Springer to be submitted by Mr. Terrence Bolden of Jacksonville, Arkansas. 3. The LRSD understood this Court's deadline of June 21, 2002 for identifying witnesses and exhibits to preclude any discovery after that date. 4. The LRSD seeks a protective order pursuant to Fed. R. Civ. P. 26( c) precluding Joshua from submitting FOIA requests to the LRSD and from conducting any further discovery before the July 22, 2002 hearing. 5. Joshua's use of the FOIA to conduct discovery is intended to annoy, oppress and unduly burden LRSD. First, Joshua's requests are over broad. Joshua made no effort to limit its requests to the issues for the July 22, 2002 hearing. Second, the request is unreasonably cumulative. See Fed. R Civ. P. 26(b )(2)(i). Many of the documents requested have already been provided to Joshua (e.g., quarterly reports and academic award reports). Finally, the burden and expense of complying with Joshua's request outweighs any likely benefit. See Fed. R. Civ. P. 26(b)(2)(iii). Pursuant to the Court's order of May 15, 2002, the documen~ will not be admissible at the July 22, 2002 hearing. 6. LRSD has attempted to confer 'With Joshua, but Joshua has not responded to our Jwie 26, 2002 letter seeking to resolve this issue and counsel for Joshua could not be reached by telephone on June 28, 2002. 7. LRSD's memorandum brief in support of this Motion is hereby incorporated by reference. As discussed therein, this Court has discretion to ei:tjoin Joshua's use of the FOJA to conduct discovery. WHEREFORE, Plaintiff prays for a protective order relieving the LRSD from its obligation to respond to the requests for infonnation attached hereto as Exhibit 1; precluding Joshua, or anyone acting on their behalf: from submitting additional FOIA req~ to the LRSD; precluding Joshua from conducting any further discovery in this case until the July 22, 2002 hearing; and directing Joshua to conduct all future discovery pursuant to the Federal Rules of 1-'.IUDAY ELDREDGE &amp; CLARK (aJ00S / 041 Civil Procedure; for an emergency hearing on this Motion; and for all other just and proper relief to which it may be entitled. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT Christopher Heller (#81083) John C. Fendley, Jr. (#92182) FRIDAY, ELDREDGE &amp; CLARK Regions Center, Suite 2000 400 West Capitol Little Rock. AR 72201-3493 (501) 376-.zUl-,i.--- B : CERTIFICATE OF SERVICE 1 certify that a copy of the foregoing has been served on the following people by fax and mail on June 28, 2002: Mr. John W. Walker JOHNW. WALKER.P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp;JONES, P.A. 42S W. Capitol, Suite 3400 Little Rocle, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm. 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 3 Ms. Ann Brown Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 7220 l Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 P:IHOMlal'l!Hl&gt;UMUSD 2001~FOL\+2Ul . ....i ~ 00 4/ 041 4 &lt;USClll!L ff. PMlt.Y 11'11""1 AM '4. $(JTT01'f, P.A. M. 21$.EMAN. /&amp;.. P " stw.. P'.A. A., alJl'TlY., .A =aEOE:IUCX S Ut.SEI.Y. PA, JSCAI.C. CIAVlS.JI..~ r .A. 'AMG.1 C. ~II\.. f /'I. ntON,&amp;.$ t . UGG1ft, P.A. 'Offli! DWEY ,.-,.T.S01'. l'.A Al.It. 8.. IEl'M .. SIL ,..t.. ...AI.RYW. l~.1.A. \ . WYCUJ,f'f liflSIGT. IL, r A. 1ANES ED11'AU l'lAUJS. I .A I. NUWf MALCOM. .A. IAME,S IC Slta$0N, P.A. 1ANES N , S.\XTOM. t .4 . ' Stu:rt1c~ USSLL Ill. , ,., :IOHALO H.. AACOfrl. r .A. IU.tAM THOM.Al, ,A.:ir1'!.' P.A. UCN.-.&amp;0 0 . TAT\.Ot. f .A. 10.SEIH I . truUT, J , f.A. IUZAIETII KOPllll&lt; f,WUAY. P.A. CKIUS"T'Of'tfU: ~ P..A.. LAUI.A Kl!JISLtY SMITH. P,,._ 101~.T ,. :,u.a. -1'.A.. rwA.M M. c-,FptN m. , .A. &gt;UCHA.%1.. S MOOU. f .A. DIAf'l'C S . MAO::E'W", P.A. W.A.LTU "' ,aCt.1(1. P A. r..CYI,.. A. Cl.ASS, P.A. WUJ.l"N A. 'WAOOG&amp;.1.. Jk._ &gt;,..._ SCOTT J. &amp;.AZ&lt;ASTek. P.A. l01lC11.T O DEACK. JL f ,A. J. ~e llO"'N. P.A. JA.HES C. BAS:P.. Ja.. r .A. .....UY A. UGKT_ r A. SCOTT H. tuaea. ,_,._ GUY AL TOH w..i,e, ........ Ptuee C. CAAJ&gt;H1.. P.A. TOf\11.t. " JONES. I.A. c,,-..YfO D. 'fillSOPI. I .A. IEHI.EY tf. MOOK.. f .o\. DA.VIO M. GllAl'. P.A Via Fax No. 374-4187 Mr. John Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72206 FRIDAY ELDREDGE &amp; CLARK FRIDAY ELDREDGE &amp; CLARK ATTORNEYS AT LAW A LIMITD LIA81LITY PARTN!l'l5HII" www.ftid3)'rirm.co'" 2000 RfGIONS CENTER 400 WEST CAPITO~ llTTle ROCK. ARKAN5A51220ll,.193 TElEPHQN(; 501-318-20! I ~AX .S01-37S21'7 , .. ~s NORTH FVTRA\.l OAIVf. SUITE 1~ FAYETTl!.Vt.l~. ARKANS.\S 72711~'611 TELEPHON'C! 17Q..HS-201' ,A.It T .. HS0ZHT 20 NORTH FIFTM STRC~T tLYTh~VfLLE.. ARKANSAS 12315 'l'ELeP&gt;&lt;Or&lt;f f70.71MU8 ,.;., t70-71.2...J.Ott June 26, 2002 CAIU.A CUWMl'.I..S 3PA.ffllt0Uk. "&gt;.A.. JOlctf ~ #.l.HOlEY~ JL t ,A. JO,-,,._..,.. UJZA.BETH CONIQUO. P.A It o,aUTOtHr.A. LAWS()H, P.A. rAAW C. fOCCMAJlf'. r A, otTTV J, OEMOKT. r .A. L'l"'NDA M. JOMMSOlf. P.A. UHBW . .SMJJ'11.J'. "- QJFPOM W, PUJNllTT, I .A. OA.Mct. L t&lt;EtalNGTOH. , .A, MAltYIN L CIALDEAS JI( .COLEHAH"111'1rnJtfl,O,Oll', a . AUJSO'tril J. C01l)rl'WEU EU.ntt owwt JASOl'I a. lfEND&amp;E&gt;&lt; sivce a. r,a.-ru. MICHA.EL E. S:A."'1f'6l' ,::ELLY MU11.Ptn" M.CQUlEN JQSUHr.MCCAY .a.LEXAtt01.A ,.__ !fl:.AN' JAY' T. fAV.L.01. M.utTJf' 4 "-AITEN' Re: LRSD v. PCSSO Discovery Dear John: ~006/ 041 B1CY.a&gt;nr, 0~ fOSUH G. NICIIOLS 108.IT T. SIICJTH &amp;YAW A.. 10,..MAW TlMOTllY C. EZEl.L ? . MlQCCt,,L. A1'()._ t:.Aa.EN $ . KALIIEllltT SAIIAH "'- COTTO" rf'flL,.lf' A. NONTOOMJtY C.WTEtf :S. IJGGINS At.AHG. BllYAN UHDStT MIT01AM SLO~W KJtA.y"(-,M fltl( tDDfN(:$ fOff'N f. HlSEl.fCH ,.._ I .S. CLAfUC WILLIAM L 1'Elta.V Wf\,1.IAM L , .. trow. JL H.T. 1.AAZnau, P.A. JOtOf C. CHOU. P.A A..0 MCAU.tl'TTA. C:,.llb$TOPkEtt HEt.lER LITTLE ROCK TEL s01 .. n, .. n,. FAX Stt-1:SJU t1t1t~f.~.t11 I am writing in an effort to resolve our dispute concerning your use of the Arkansas Freedom of Information Act to conduct discovery in this case. We received several requests for infonnation from your office on your letterhead signed by Joy Springer. We responded that we would treat those requests as discovery requests pursuant to the Federal Rules of Civil Procedure and provide the requested information in the time and manner set forth in those rules. We have now received a request from Ms. Springer on her personal stationery seeking all the previously requesled information and more pursuant to the Arkansas Freedom of Information Act. l feel strongly that the Freedom oflnfonnation Act should not be used to circumvent Federal Court procedures or to unduly burden the Little Rock School District as it works to prepare for the July hearing in this case. In order to resolve our dispute and avoid our having to seek relief from Judge Ray or Judge Wilson, I will agree to treat the FOI requests we received from Ms. Springer this afternoon as discovery requests pursuant to the Federal Rules of Civil Procedure and provide a response accordingly. Please let me know if this proposed resolution is acceptable to you. Yours very truly, Christopher Heller CJH/bk cc: Dr. Ken James PlAINTIFF1S EXHIBIT 1 .1.-lUDAY ELDREDGE &amp; CLARK (aJ007 / 041 Dr. T. Kenneth James Superintendent of Sch~ Little Rock School District 810 West Marlcham June 26, 2002 RtcEJ\IE!) JUN 28 2DDl SUPT'S OFFICE little RDcl; AR 72201 Deac Dr. lames; This request is pursuant to the Arkansas Freedom oflnfonnation Act. Would you please provide for review, mspection aod copying the follo~og information: l) all files maintained by pr~OU$ superintendents in Ms. Griffin's office area on each of the District's schools for each of the last fi,,e years; 2002; 2) the minute$ and agendas of the District's compliance committee meetings since January, 3) all disaggregated data results of all school climate sutveys administered during 1hc .last iive years; . 4) aJl academic award reports for each secondary school for each of the last :five years; years; 5) all senior rank lists by race and gender for each high school for each oft he last three 6} all school semces quarterly reports for each of the last five years; 7) all program evaluations prepared by 1he divisions of administrative services. school services and instruction for each of the last tive years; 8) all master schedule audits for each of the last five years; 9) the current swnmer school enrollment by race and gender; and 10) all minutes and agendas of the Activities Ad\lfsory Board. May I r~iewthis information by 10:001un. on Monday, July 1., 2002. Thankyou. Sincerely, Terrence Bolden P.O. Box 5980 1acksom,lle, AR. 72076 501-985-4846 vu , .ao , ,.vv .. ..1.0 : .&gt;o rAA ;iu-1. J/0 ;.: ,1 4 1 flUVAY .t::LDREDGE &amp; CLARK .JU'l .26.2002 1006Frl JCttl W 1-JALKER P ~ Dr. T. Kemietb.James Superintendent of Schools Little Rock School Disttict 810 West Markham Little Rock, AR 72201 DearDr-.J~: FROM THE D,E SK OF JOY C Sl"RINGER June 26, 2002 ~008/ 041 f".1 This request is pursururt to the .Arlcamas ~ ofIDfvmration. Act. Would you please provide for review, inspection and copying 1he following mfor:mation;- I) all files maintained by previous superixrtendem:s in Ms. Griffin's office area on each of the District's .schools foe each of the last five years; 2) the minutes and age:adas of th~ District's compliance committee meetiPgs since Jamiary. 2002; 3) all di~egated ~ results of all school climate surveys adro:rnistcred dutingthe last nveyears; 4) all .academic a.'W&amp;rl reports for each semndary school for each of the last :five S) all senior Imlk lists by race and gender for each high school for each of tlie w:t three years: 6) all school services quarterly reports for each of the last five years; 7) all program evalcations prepared by the dMsiOJlS of administtati.ve services, school services and insuuc.tkm for- osch of the last five years; 8) all master scbedule andm for eai:h of'the last 1ive years; 9) the cmrent summer sclmol enrollmeDt by race and gender, and IO) an mimrtes and agendas of the Activities .Advisory Beard. 1n ~rdance with the Freedom oflnformation Ad:., this infurroarltJn should be provided within tweuty.four bours. Smee I will be out of town OQ tomorrow :fbr the remainder oftbe week, I am requesting that the itlformanon be made available on Monday moroing at 11:00 a..m. 06/26/02 WED 14:01 (T.VR.\ :'-10 9~~1 I vv , .o, -vv4 iu . Jo r.a.,. aui JIO ~i4t ~KlVAY tU&gt;.IO::V~t &amp; CLAJ&lt;K JU'i.25,2002 10:06AM .JOI-Ii_ W W~ER p R Thank you fur ~our attention to tlJis request. , ~ ~ ~c.s~ 22osruce Lit11e ~ck., .AR 72202 Telephone- 501-372-3423 Fax - 501-374-4187 N0.463 ~009/ 041 P.2 06/26/02 WEI) 14:01 ITXIRX NO 9lll.1 I lltU&lt;:ltt.L IL , lt.ii&gt;A Y ('n-") 'IIIL\.l"M II- Jll!'Tf&gt;)I. &gt;_,._ ano)I ,._ J!JJDWI. JL. , _,._ J0l.fl..ltU.. ,_..._ 1i-lll'TitY.P,A. Ola&amp;. UUZJ.'I'. P.A. &gt;CA&amp;IL DAYI.S.JL. P.A. JAMSI' C. a,&gt;.a&amp;. JL. P.A. TIIONAS P. Llt042ff. &gt;.,._ JOH)l l&gt;~P- wnox. ,_,__ PAUl.JLIIDIIL\llm, P.A. u.a&amp;T W . UBS.. P.A. A wY'CQ.JPP'HISBJ!T. IJII.. Jl'.A. JAIUSS mw UD IL\MJS. , .A. J . J1Ut.Lff M"-lCOM. f' -1\, JAMA .N. SIMPS0\11. t .A. 1""'1:$N. S,UITO!f. P.A-J. $llltlll~ ~l!U- Ill., . .._ DOMAl.D 11. JIACOJt. t.A.. WD.1.1.AN f'BOMAJ BA.XTO. P.A.. RJ:CILU.D D. TATI.Ol.. P.A. ,osusa. RUUT.JLr.A. EUL\.BETH ROBBoH M'UUAY. P.A. OINSTOJ'KD 101J.:u. f .A. 1.AOMNDSUTSMITILP.A. IIONkt i. SIIAin. ;_,._ WILUAMM. CaJRIIIJIJ.P.A. lGCJ:IAD. 3 . MOOU. I .A. DLUE 1. WA.CEEY~ IJ,,.. WAI.JDN.oa.m.,.A. ltE'Y!lfA.CJlASS.P.A. WJLUAN A. WA,OOU,L Jk.. t.A, $(Ott J. \..&amp;l&lt;~t ..... JOJU.T 11. JEAQI. la.. P.A. J. LU aao-. &gt;-4- JAMU C. IA&amp;'.D. JL. P.A. Klll.Y A.. UOlff. ? . A.. scorr a. TUca.&amp;. , .A. GUY ALTON' WAD.I!. ,,.A.. Pl.la C. G,UUHG&amp;.. I.A. i0HlA. JI. &gt;ONE.a. JA PAYJDD, "'1U'Ofl,P.A. 181J'JU!Y K. HO(\U. P.A. DAVIII N. CkAJ'. t.A. Ms. Joy Springer John W_ Walker, PA_ 1723 Broadway Little Rock, AR 72206 VIA U.S. MAIL AND FAX: RE: LRSD v. PCSSD Dear Ms. Springer: .t-K.lVAY J:;LDREDGE &amp; CLARK FRIDAY ELDREDGE &amp; CLARK ATTORHEYS AT LAW A LIMITED LIABILITY PARTNERSHIP ..w Jr1dayllrm_eom 2000 REGIONS CENTER oo WEST CAPITOL LITTLE; ROCK, ARKANSAS 72201-3493 TELEPHONE 501.378-2011 FAX $01-376-2147 :7?$ NOJltTH FlJTJtAU ORf"'E'. avne 10, ,,.~!TTfllli.U:, AJll(AHSAS 7VOMl11 TEU!.JtOlt( fMd-z01t ,u Jt-H$-2,.7 208 KORTH JIJTM STIIUT 15LY'fttEY1\.L,. A~AM$~$ 7ZS1$ Te~EPHONe ett-1e2-20H ,AJ&lt; t7~712-z,1 June 24, 2002 374-4187 CA.Jtl.A GUJfJG:U $PADtOUll.7..A.. JORN C. n:Jl'DUY JL. p .A. l0-IIJZAIIITII COlllC:UO. P.A. L QlIST0PHU UW$0N. P.A. n.u, C. WCI.MAN, P.A. B~ l . DMOkY, I .A. L.~J&gt;A M. JOJDiSO)t. P.A. IAMQ 'W. $MrTJI', r-4- CUfPOltb W. N.IJNU.ff, f'.A.. DANIELL Jl'DaJHGTON. P..A. NAllYIML. &lt;:1111.l&gt;AS C.. COLEMAN WESnllOOE, It. AU.Jnt,. CO~L LUNM.OWEI$ JAS'Ot49..~ aauaa.notrE.,.L MIC'llAIU. a. ~IY' lt!U. Y MllllPKY NCQIIUN J0$~&gt;17. HCMY A~OtA A- ltkAN U.Y t. TVl..Oll MAaTIN A. ~'fN' ~010/ 041 BAYAJIW. DUU JO$Zl'IIG. N1Cli01.S IO&amp;D.TT- SMlft Y A)t A, OOIINI TJMOTRYC.= "[. MICJIZll.Z ATOR LU.El L JIAUIEll :SAllAJf N, C'OTTOJII nttur H01'f7!iOMIJlT lll!fflf$.IUGCI?&lt;$ ALAMa. aavAN LDfl&gt;SEY MITCHAM Jt,.OAM DAYY....,. M. U&gt;Df)HH IOIIN F. PESEIUCR orc;OV"'ID. a.s.cuu: ..-u.J.lAlC L TEllY TU.l.JAJIII t.. 1' A.TYO'M, JW... H.Y. UJIZELEJl.. P.A. 10KIW C. EOfOI.5. P.A . A.11.MCAJ.Llnn JOHii C. ,CNOL..{V_ Jlt. Lm~E ococ TELSH~7~ FAX 511244SS41 fflldl9yOfc.-nt This letter concerns your requests for information submitted June 11 and 12, 2002. We consider these to be informal requests for discovery and have advised the District work to prepare responses within thirty days of your request. We hope you understand that preparation of responses to your requests for information can be time conswning. Giving District personnel thirty days to respond will hopefully ensure that they are not forced to neglect important District priorities. We appreciate your cooperation in this regard With regard to your request for information dated June 11, 2002 to Dr. Hurley, we are concerned that this request relates to the lawsuit .filed by Mr. Walker on behalf of Jim Mosby. It would be inappropriate for the Joshua Interveners to use their monitoring role in this case to assist individual District employees in litigation against the District. Moreover. the Joshua Intcrveners should support the District's effort to provide a certified principal for the students at Southwest Middle School, an overwhelmillgly Aftican-American school. Due to this concern, we have advised Dr. Hurley not to respond to the request until we have had an opportunity to discuss this with you. Ms. Joy Springer June 24, 2002 Page2 Please give me a call at your convenience to discuss this request. Sincerely, ~t~ Jolm C. Fendley, Jr. cc: Dr. Ken James (by fax and mail) ------ ---- ~011/ 041 FRIDAY ELDREDGE &amp; CLARK He'I.So&amp;El. K. F'lUlAY (1911.ltt4) U~ H. SUTTON, P.A. ON N. ElS&amp;MAli. ,._ P.A. D. ULL.P.A. ES A. DIJTTI.Y. P,A. fJU;OEIJCk f , Uu.t.&amp;Y. r .A, OSCAaE. DAYlS. JL. P.A. JAMts e. Cl.ANt. Jll,. , .A. Til0M.S p, I.ICICP:TT. t .A. JOHN DE"WEY WATS:OH, f.A,. , AW.. ... BDlll,Uf l1L , ..A. LA.RJt.Y W. a\11.1tJ, P.A. ,._ '"OUJFFll158ET. Ja., P.A. JANES EDWAID HAU.11. P.A. J. P.HIUJP MALCOM. P.A.. JAMES N. 5,UIIPSON. P.A JAM~ M. SAXTON. P.A. J, Sh!PW!G JWSSEll. UI, P.A. PO)rr,IAU) H. !ltctn't, P.A. WII.L.lAM TMOMAS BAXTER. P.A. ltlCM.A'l.t'I D. T1'Yt.O-.. 1.A.. J0.11'&gt;4 II. nu-ST. Jll. P.A. EU:t-t-ATll llODDlill '4UU.AY. P,A, CHJJ!TOPHEl mUE1. I.A.. L..Wb HENlUY SWJ'TJL P.A. at08E.AT S. ZHAJ"Ea. '-' WJIJ.IAM M. CJUm)l lll , .A. M&amp;CHAll S. ll,IOOR'- F,A, l&gt;LtJG: I. &gt;U.CX.EV .. I.A. WALTUM. 851. JU, P.A. "'VIN A, CA.US, P.A. Wll.l.lAW A. \VAl)P,J!U. JI.., P./\. SCOTT I. l..t.HCAl?P, P.A. I.OBllT B. UA(K. JI- P. A.. 1. LEE aaoww. , .,._ IANES C. Billi. 11.. P.A. MAU.YA.. UGNT, P,ASCOTT H. ruao.. p .A. mrY At.'TONWAll'E. f .A.. PJ.lct C. GARl&gt;lfll.. P ,A. TlffllA P. JONU.1'. A.. OA.VID D. WILSON, P.A. J?l'FREY IL MOOll. P.A. DAVID M. GMI. I .A. FRIDAY ELDREDGE &amp; CLARK -.noRNEVS -.T t.AW A LIMITED LIABILITY PARTNERSHIP www.frloay11rm.com 2000 REGIONS CENTER 400 Wl!ST CAPITOL LITTl.E ROCK. ARKANSAS 72201353 TELEPHONE S01-376-2011 YAX 5013752147 '425 NORTH FVTRALl 0ilUVE, SUITE fH F'-YeTTev,~ce. Alll(A~SAS 1210311 T.ELEPHONE "'71-,&amp;05'-2011 F,.X 1t-t9'3-z,a7 201 NORTH FIF'TM STR,~tT ILYTHfVll,,1.E. A,t.UNSAS 72.215 TELEPHONE 870-TU-2891 FAX 17G-74!12'-1tHI June 24, 2002 [] Copy and return withP.O.T. [ J Return P.O.T. only TELECOPY TO: Joy Springer Dr. Ken James 374-4187 447-1159 FROM: John C. Fendley, Jr. MESSAGE: See the following re: LRSD vs. PCSSD. C.UA Cl/llllEU SPAl1'llOOR. P.A. JOHtl,:. PB)rlOLrr. 111... I .A. &gt;OIIAl/N EUZADeTII (01'1Cco. r .A, Jl. CJWSTOPJfEI. l.A.W$0N, !'.A.. PlWf C. IOCICNAM, P.A. B~T?V J. Ou,tOltT. 1,A, L YNl)A M. )OIO'!ON, t . A. JAJWIISS 'W. SMITH. P.A. CUlpO-.i,, W, Pl.~. P.A. DAllliL 'I,. JU:JJUIIGT01', t .A. .MAAYIN L eNI.LDfflf IC. COUMAW wesn,ac&gt;OI(.. ,,.. All.1!0lf l . CQl.\l'N!U,, EU.E&gt;I ... 0\1121'$ 1AJON a. 12Nt&gt;anl llt.UCE. B. Tll)W!J,,,L. MICIWtl. "- ltAll&gt;lt'f Ull Y NU11PMY MCQUUll JOUIK I . WCJC.AY ALUANDLA A. 11aJI.H JAT T. TAYLOR MARnN A. X..U:T.sN TOTAL NO. OF PAGES INCLUDING THIS COVER SHEET _3_. IF YOU DO NOT RECENE ALL TIIE PAGES - PLEASE CALL BACK ASAP (501) 376-2011 TRANSMITTING FROM: (PLEASE CIRCLE ONE) TELECOPY OPERATOR: FOR OFF1CE USE ONLY: AUTOMATIC FAX RAPICOM 200 - (501) 376-2147 AUTOMATIC FAX RAPICOM 200 - (501) 376-6369 LI23-0-90 CLIENT/MATIER# 141012/ 041 8lY AH W. DUD:: JOSEPH G. NJCROU aoanT T. SMITH kY-'\)f A., eOWMA.Jri TIMOTHY C. EULi. T. MJCHELU.-.TOk KAJ.SJrf s. HALBD.J' SAIWI M, COTTO,, t-HlUt a. ~OJlilC~"'r WS1EH !. .RJGGl&gt;ll Al.AH G. AYAW 1..n'DiEV NrTCH.AM ~LO~ 'CRA"YYAM M. i:mln:IC!:. JOHN f . 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F:~\10IIMS\l'AXll'alef\:prioi.,..,;.,.....,., .flUDAY ELDREDGE &amp; CLARK 06/24/02 MON 11:53 FAX 3432 ********SSSSSSSSSSSSSSSSSSSSSS *** MULTI TX/RX REPORT *** ****************************** T.l/RX NO INCOMPLETE TX/RX TRANSACTION OK (1) 93744187 ERROR MP~CNF.J.. tC. PllbA ( ,1,n1!11JI w,v; ..... ,L iunu . t-.A. DVIIOM M. C,JJIIIIJt JL 7.A. JCIUU. Ul!U..,,A. J11,,-r.,. . U\ffTAY. r A Clli:.Klc;:&amp; J , v,:sa: ~Y. I .A. tnCAt! tJAWIJ. JI. . I A.. J""f-~ C Q , fltilll&lt;., , . r.A. 'l'rt(I~--$ " J..#JC)l!T:. .A. JOUM Dli" WAnnw. ,.,.. PAV\. If. UCtnlA.M m f.A. L4JUI.TW,ll\l~P.\.. A. w,a~lfP' Jrttt.t9E ', ,n., ,-. Jri . JAllfU CnW,ULD H!'ll:a,s, ~-" J. r,ow, MALCOM, " " J,a.MC., ~ - :CMPJn)II, , ,.\.. JAMU W. !;.if(IW, l'.A. J. $HUHP.R" ldJ.ilr.J I., ut, .. ,A, OON.\LO '9, a..OON. .,\. "1LU)&amp; f.t(JM~ (I\J:'f'e., r.,\. 1.u:uaatt b . 1'11Vt.(U , , .-. JOJl'J,t JJ. ltlJM$'1', Jt, , A. (2) 94471159 OU~Vltnl ,_Oita! MUM.\Y, P.A. ClllU~TOntUl.ll0J..D.i I .A. UlJM Ut1Ni1.n .s.MJTN. t .A. 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[] RetumP.O.T. only TELECOP.Y TO: Joy Springer Dr. Ken James 374-4187 447-1159 FROM: John C. Fendley, Jr. MESSAGE: See the following re:~ vs. PCSSD. !:AM.A C\INWl!U IMIIINOII&amp;, P,A, JUffff C. fl:."l'IOLCi .t'- P.A. .OMAN CUZ. ... L'TII CUNllil.lO, , ,A, J.. QfllSTOfREJl V.Wi()fl( , P. A. ~ow, C IIICCMAN. P.A. ~ltTTf J. OatOltl'. , ,,._ l,Y?IUIII 'l. JUJINSON. f.A. JI\MU, - n1n1L t ,h. (.."\,fPl"IJa.o W. PLW)tl1T. I.A. \&gt;Af'Uli:t.. L HEJJUfilCSTON. 1.A. NhlLVIN L.. CNIUJa.$ " C:01.D&lt;A-~ WESTOIOO&gt;:. JL MJ.J,SON J. COUWIU t~UNM. OWE&gt;IS "'"'" a. IW/l)al)I IUJCE: I . 'TtOWlJ.I, MtcHA.EL t. kAPEY 1'.ELLY MU"INY MD)IJF.fhit JOSEftU. Ma.AV A.I.Z);.-.ND&amp;A. A.. IFAA N JAYT. T.AYU,. MAkTl!II A . ..::,1,sT,.-,I TOTAL NO. OF PAGES INCLUDING THIS COVER SHEET_3_. IF YOU DO NOT RECEIVE AIL THE PAGES - PLEASE CALL BACK ASAP (501) 376-2011 TRANSMITTlNG .FROM: (PLEASE CIR.CLE ONE) AUTOMATIC FAX RAPICOM 200- (501) 376-2147 AUTOMATIC FAX RAPlCOM 200 - (501} 376-6369 141013/ 041 Olll'Aflf ft, CIUltl,; J('tC~ &amp;:., flllt~'"IWLS IIIOUtltt Y. 5KITII kfAtt A. ,uwM.Ut TIMQ"fllV L'. e:i.eu .. T. lliNC:ucu.u ATOii!. K.tketf :.. lfALOl!A.T t&amp;IA'1 M, l))nUN r1nur ,. MOl'CTUOM[J.Y ~'ff7fl'Clt 4, Rlt.G1HS AlAHd. YAN 1.INNUT MJTCMAM S\.OAM IUl.l'YTA.M-. ~oon,rr.s JOKII r. '"JlCCU atr.s..a::na. p,J. t:\.AU. WIIJ.'AM L TEU.T WIU.IAM L fATT'ON. JIL ILT. wUZ.1!1.llt;, M . 101\H C. El:jfOU.. P.A. ~.l'. MCA .. ~Uf~ll. JOHN C, tE1'LC,t..(.'r, '" LITTLE oclt Te'L H1a;iJOJ:q~ FA-~HJ44-$:J41 ........ ,a,., . ., .. FRIDAY ELDREDGE &amp; CLARK 141014/ 041 JllN. 24.2002 4!~f't1 JPBN'1.W~ Sill. WN CHILD6 Ms. Sadie.Mitebell J"OnN 1,4 WAI...J&lt;E:R p ~ JOHN W. WALKER, P.A. Affl:&gt;.aNSY Atr LAvr 17.231'\acwJwA.Y .l.mI.Z.Rocg;,ARXANSAS 72206 T~Ni (Slll) S7+-37oS PAX (501) 874-4187 Associate Supcrixltcadcnt for Scbool Services I.itde .Reck Sdlool Distria 810WcstMmbam Lin1e Rock, AR 72201 Dear Ms. Mitchell: Would you please provide the following imo.tmation: N0,44S (:J. W:11;"""_,l) All disaggregated data results ot"all school c:liinate surveys adrninist~ d~g the 2001-.2002 school year; p I'"; .. r..:,.,.J 2) All a.c.ademic awards reporu for eac:h secondary school f.or cac:h.oftbc wt three years; and pv-: ,,_~ f'"' I 3) All scmor raQk lists by race and gaJder for each high school for each of the last three~. I plan to be in your buiJding on Wednesday. I will drop 1'J,' your office on this dKtc to eheck tbc status oftms mformatioa. Thank you for your attention to this request. JCS/ P .2 JOHN W. W'.ALKP Sl!Alll'N C!DI.DS Dr. T. Kenneth James Superiuteodem of Schools Little R.oc:k. School Distrlct 81 O West Markham Little Rack, AB. 72201 Dear Dr. James: JOBN W. WALKER, P.A. Anomr ATLA.W l 723 BICWJW.&amp;r !.muc ~ ~ 72206 TD.BPilon (601) 37~5&amp; FAX (SO~ 81H187 Via Facsimile )W1e 24, 2002 Would you please provide for review, inspedion and copyine each of the files maintmd by pf"e\liogs supeimtendents .in Ms. Griffin's office area on each of~ Distric:' s sc3iools. I will be looking for. tlffiODg other thiDgs, all }'are:nt complamts, individual or group, petitions, letters or atherwi,c, for each ottbe last three years. r 11/0llld appreciate }.(s. Griffin mald.ng these files a.vailable on Wedfles&lt;hy morning arou:nd 10:00 a.m. Th8llk you for your attem:ion to this request. JCS/ P.S_- f have also pxeriiously req11ested that yau provide the mi.mites ml agendas of the eompllance committee meetings since Januazy, 2002. Your cooperation. in al!o makmg these iteins available 011 Wednesdaymommg is appreciaud. 141015 / 0 41 JOHN W. WAI.ltER SR.t\WN CHILDS Dr. Kenneth James Supermtendent of Schools Liale Rocle School District 810 West Mark.ham Little Rock, Arkansas 72201 Dear Dr. James: l-'.IUVAY. ELDREDGE &amp; CLARK JOHN W. WALKER., P.A. A~AxLAw 1723 B!0.ADWAY I.rm.! RDCX. .AIXANaAS 'i'2206 Tw:mom: (501) 874-8758 FAX (501) 374-418'7 June 21, 2002 [4]016 / 041 OF COUNSEL ROBEl1'1' Md!ENXY, PA DONNA J. McHENRY 8210 HDDmaN RQAD um.z Boa.~ '72210 l'IIO.N11: (SOl) 372-SCS F.Al(50l) ~ ~ mthemy~11.~ Please provide by return facsimile a copy of the petition by teachers in support of their choice for principal at Central Hi2b School Thank you. JCS/cac - --- RECEIVED JUN 2 4 2002 SUPT'S Orfh.,c J'OHNW. WAI.EE!t sHAWNCBILDS Dr. T.KezmethJames Superiute.D~ af~ols Little ltock School District 810 WestMmxbam Little Rock, All 72:201 De:arDr. James: FRIDAY ELDREDGE &amp; CLARK JOHN W. WALKER, P.A. AmiNB!Arrl.B 1723 BllOAlJWAY Lfm.El\oQi ~ 72206 Tl!LmlONS (SO'Jj S7 4-3'1S8 'FAX (501) 374--4187 Via Facsimile June~ 2002 Would you please provide to me the agendas and .mi.mtt2s Qf the compliance team ::meetings since 1ammy, 20oz to present. Thank you for your CQoperation. ~i.e .. __ . - "'lf!.springer~ Ou Beba!f of JQSbua JCS/ @017/ 041 FRIDAY ELDREDGE &amp; CLARK 86/11/2002 12:10 5013242090 .ru-1. 11.2002 10;~ JOli'f W ~ P Fl Dr. FJclmrd Hurley ~rof&amp;manRt~ Lit:t.te RQck SdiooI District 810WestM.arldlam Little Rock, AR. 72201 . Dear Dr. Hurley: JOBN W. WAIXER., P.A. .M'l'ORNiYMLA.W 1723 B1IOAJ&gt;"7A!' I.mu :aoa. ABIW&amp;S 12.206 ~ ~1) 874-8158 Fil (501) 874-418'1 Juue 11, 2002 14)018/ 041 PAGE 01 I m11 writing to request that you proYide to me tbe names all Distr:ict employees who hold the position of Associate Superirrteodem, ~ Supmm~ Principal. Assistant PrineiJ&gt;Slt Oircctoi, Coordluator aDd Supervisor ittclucfmg their educational baclcgroand and respective certifications. Your aneuiion to thi$ tequest is ap~ r;;~ 1oy C. Springer On Behalf of Josb\ia ]CS! 06/05/2002 16:43 501-324-2213 JOHN W. WALKER SRAWN QDLDS Ms. Sadie Mitchell l-".IUDAY ELDREDGE &amp; CLARK SCHJOL SERVICES JOHN W. WALKER, P.A. AlToRNEY A:r LAW 1723 BROADWAY Llnu: ROCX. ARXANsAs 72206 TuU:rHOi-r&amp;(501)27+37S8 FAX {501) 374-4.187 Via Facsimile May 31, 2002 Associate Superintendent for School SCNices Little Rock School District 810 West Markham Little Rock, AR 72201 Dear Ms. Mitchell: ~0191041 PAGE: 0.::/ '. : Ot'CO!.i:-:;;~~ ROBERT McHENlI~: :: ... OONNAJ. M~Jit::-!l 8210 Hl!l&lt;DERS()S ;..:;,:.: Llrn.E Roc1'; Altl&lt;A&gt;I!;,\$ 7:.::.: ! PHO!&lt;: (SOl) ~2-~A:lS FAX (Ml) 372-:&lt;~'. . FM.t.ii.: mchcnnd@.1'&lt;0;, .~,- Would you please provide the following information to me at our meeting on June 15, 2002: l) the number ofSllldents enrolled by rac.e and gender in summer school for the current school year; 2) the elementary sites for summer school; 3) the secondary sites for summer school including middle scltool; 4) the number of students enrolled by race and gendc:r in summer ~bool fur each of the past three years: (98-99; 99-00; and 00-01) at the elementary and secondaxy levels; 5) the subjects being over during this year s summer school at the secondary level; and 6) the subjects that were offered to students during the years 1998 through 2001 at the secondary level. Would you also please identify the year round schools? Pio.ally. would you please advise whether there are discussions regarding the elimination ofEnglis.h and Math io summer school. I loo.le forward to our meeting. JWW~s 06/ 05/02 WED 16:57 fTl'./Rl NO 8636) VU / .:.0 1 .:.vv.:. .LO: JII .l"JU. ;)UJ. JI O ~J.4 ( !-".IUVAY ELDREDGE &amp; CLARK Ill 0201041 11/17/95 14:52 ~IGHT, LINDSEY, &amp; JENNINGS - l'O.l~ t'WVWb A~~:0-94 TU 15:45 US .DISTRICT CLERK FAX HO. l50187Z4612 P, 02 IN TU~ A'1'11 DIS'r!tlC'l' C0~.3.fYR., DS'J.'Dtf S'l'Jt?C'l OP .uXAH .ttit~~RkANSM JONUIOIO DIVISION AUG 3 O l994 I ~ PLADl'rtl"t DBFUDANTS HPPMKPPI MfR OBPIB In tbi action broqht p\lr~nt to 63 u.s.c. 5 lill, th Defendant have eou;ht a protaoti~o order (docket entry 3) attornay-olient. cowaunicationa batvn the Dafandantt and t.hai~ levyr aftd voul4 protect at.t.orny work prod\lct troa cUscloure. The latter vo11ld inolud lawyer to lavyu r;,o-unioa.t1ona Dade for th pvpoae of p~epariq and dehndinl the intant litigation. Plaintiff ateadtatly. reita t!l entry ot uch a protective order, pointing to th ArQna .rr1edo11 o~ Intonation Ao~, Ar~- Code Ann. S a5-1,-101 at; mn- (Supp, 1H3), ~ Defendant:' ~atu H tnte of publia 1ntit\ltion, ancl t.ha t'aot that th Defend.ant b&amp;ve INlan aua4 1A their official vall a inlivid\lal ca~o1t1aa, and body of Arlcana~ c law asdret1inw th ron ~nd tha ubject ot Detendan~' p&amp;-opoed order~ l : PLAINTIFF'S i EXHJBIT ,f 2 i .1.-.IUVAY l::LV.l{.t:;V~l:: &amp; (;LAf&lt;K 11/1?/95 14:52 AL'G-30-94 TUE JS:46 ~IGHT, "LINDSEY, g, Je-a-m-GS U S [STRICT CLERK l t-0. 134 P003-1306 1 FAX HO, 15019724612 It :tni~ially, it ~~ N detU'Jlina4 which rul .. ot law the co~a:t -ho~l4 apply, . ~1 ~, "oup~ in 14rl Di~iliJt ~o~ by to1"JDr stat un1veraity preidant ovor hia I f traatment by the Board of ~uea of ~id inatitution, b tor ! rm ot rights protected ~Y tlle 1av1 nd contitut1on of th vnited state,. pur1uant ta 42 u.s,c. I 1113, f84eral law control queetion ot priv1la;e. l91Jio Y, Pqvall. 773 P.ad 191, 11, (8th Cir, HH), 99rt. denied, 6715 U,S, 111' (U86); XQY,ngblqpd y. bm, 112 1.R,P, J43 (C,D, C.l. 1985). 'l'Jlta i tn even ~hr pendnt or euppl...ntal jvied1otion o&gt;.ai.a 11 jolne4 vith fe4aral c1u. BlntD Y, ui,n 1eaart11 Mea1ttl, 1,1 ,.a.D. 115 (S.n. %ova 1t92). Work product protection 41varaity oaae, lt0:0lr1i Y, Chiqapp B,I, TJ:DDIPe SP 1aa F.~.D. 1$5 (B.D. Xn4. 1Pt1). 'l'he attorney-client privil~ i an incliapenllbl tool of juatioa, and ia tro\lftded in the tederal co,mon lw. lb ori9inll go back vell before th 1100' B4l1nt tvn1r1, Inc. . . Y, IA@Eisan All UI.QeiaSJ.on, 320 ,,ad ,1, (7th c1r. 1163). '?he benefits o~ tbe pr1v1199e, both to Cha adatniatrat1on or jutic and to the attornrcU.n~ r1t1onahip, are o abundant to neacl no reoit:a.tion br. it 1 theretoz- held that the J10tion i GMN'l'ID to thoH eoaaa\U\ioation bat"'n attorney and glient thac . oomo under tha attornayclient 2 ta] 021/041 P.03 ' vv , .ao , ,;.vv.:. J.O ; 'i U riu.. ;:&gt;UJ. JI o -' 1 4"/ l'lUVAY .cLVKEDGE &amp; CLARK 11/lF 14:!;&gt;.S Wl-&lt;1bHI, L.!~T .s. JCNl'HN!;;&lt;:;&gt; NV, .l,..;&gt;"f . 30-94 TUE 15:48 US DISTRICT Cl.RK FAX 15019724812 wvUCJ a .. llri,ll;d..JH;.IS;U..X.....J~.1.DQIILJ~~.llb....AU.~., 17 r.a.o. ,st (D.c. 111. 1111). Tha otion 1 aleo GRANT.D to _into;-ation, letter , aorenda, andth lite .generated 3ttoral-Y work pro~~ot. HiQWQ Ye %A:il9', lat U.S. 4'5, 67 s.et. 285 (1147) r- .Kw i'WDIYllt !MUe AP, y, Pala -Ab tntxi 132 P.R.D. JOl (S.D. fl&amp;. 1990). Th real ditticulty, ot course, con, in deterain1n9 vhther a 9l~an it tall within or vii.bout on ot th two p~otecte4 cate9or1es. cwnl are ~lld upon to u their aound j\ldq111Cl1lt, and to conaUlt the court vhen and it bQne noo dispute ari a in th CO\lrae at dieoovry abo\lt it- that r po aibly protected. 4 ~ord ut be 9ivan to the Arkan authoritie that have touched on tha issue of privilege and work prod~ct i~ the context ot ,oa requets. tn 11s:s::1n1m:t4qa y., ,S:ity pf Little lesk. 198 Ark. 219, 76i s.W.24 ,o, (1981), the Arkan suprua court held that the Arkan rula of the attorny client privile,a d14 not c:raate u eleaap~ion ~o the Ar~anaaa rree~oa of Intoraa.tlon A~t. The ca heavily ralid on ~, Plai~t1tr, C1tx A( l1YUy1ll9 y, Ym1rli, 304 Ark. 179, 801 s.W.2d 275 (1910), bld, inter alia. tb&amp;t le9al aemoranda prpared tor the City tor 1i t1;at.1on purp0 Ver'&amp; not exeapt trom the Arkan 7raedom ot .Intonw1t1on Act. Attorney vork product vae th~ cthc'1oee4, 3 14)022 / 041 P.04 vu, .:.0 1 .:.vv,:. .1.0 : -.v ri\A .&gt;u.1. JiO l:.l4l 1-l&lt;lVA~ l::LDREDGE &amp; CLARK 11/17/95 14,53 .IJRlr,T, U~Y, '&amp;. Jt:NNll'b3 NU .l.:&gt;&lt;f I"'~~ At'G-30-94 TtJE l5i47 U S DISTRICT Cl.ERi FAX NO. 1501972'4612 p, 05 - Th court fincU ls:&amp;IICI and "1t.lUP491 ar, :not ol.ndin9 on tl'ab Court Ad aven 1t th cowt apwaaa that tboy ua, tll cloiaiot)a do :,ct ro:-aclosa this Cou~ frOll 1u.1nq an . orclor proteClting etto~nY-oliant. cc1au.nicatio11a or attorney worJc produot. (See Ark. Coda AM, I a5-1t105Cb) (I), which axupte tro11 th J'Oll dooaenta vhicaa are protaote4 ttoa lliaclosura by orclr or rule ot court. ) It i 1ntoraatinv ec, note that 'Louiiana' Public Reoorda i..w poitioally exeapea attorn.~ vcr~ produc,t tro it tel'II, ~ut no~ aatorial protected by tha attorney~Uan~ privilege. S T111se y, LQui iana tans, t SXplQ~tilpn, 805 F.S~)p. 315 (M.D. IA. 1992). tn exllllli~in; tha ~kan1ae authori~iH, it is rea411Y apparent that the tocu and concorn ot tbe ArJcaftU State oow:tu 111 with the 11hol l)ody of ArlcanH law, anct tile function of Arkanaa law in the affliz or kk.an oi~iaen Thie fade.al court, Vhil 8ituatoll within Arkanaa, "t navei-thel.eH h11ve a it pr!aary concern ~ eftiaiant: adainitration ct jutiaa and the tair resolution of federal olai rau .. eole br the psrti litiiant in federal oourt. Th111, ~darl lav and prooedllr auet. )a appli~. 1'1' IS, 'nllRll'OU, OIU&gt;DJD that 1111 papu1, ntar1al.a, and othar thinp colla~ted o~ praparect by th ,-rt1 or their ~prnbtJ.vee in anticipation tor trial, or otheni wiel\1n th aoope of th r..ieral work product: ISoatrin, ancl all. pri vata ooamw,ications of anr kind between th d~andant anct their 0o~nl Within the ; racogni1ed bcundari ot the 141023 / 041 vv, .Q , .uu~ ~u - ~v r,u,. avi J/0 ~i4/ ~KlVAX tJ..lJ.lti,;VGt &amp; Cl.AJ&lt;K 11/17 /95 14: 54 WRIGHT f 1..lNLJ::c. Y, ;s.. ; ttiN 1 No:&gt; r...i .&amp;.-&gt;'+ . P!JG-30-94 TUE 15:48 U tDISTRICT CURI FAJOIO. i50J972481Z . P,06 -~raar-oliant pd.vilo9ca, ~ h~oy ~ro~~t:od t~o. cUaooviy . \Jy '= oppoainq pu-ty or l'elaa to any ~Ud pa.ty, ucpt by order ot thi eo~rt. 5 1410241 041 V0 / ,&amp;.0 / ,&amp;.VV,&amp;. J.0 : 4J. rAA :&gt;UJ. J"[!j :!147 FRIDAY ELDREDGE &amp; CLARK l-N THE CilCUIT COURT OF DALLAS COUNTY, ARXA.N'SAS 141025/ 041 ,.,,,11-r-- '-.J'---I-STAT OF AFJ&lt;ANSAS PLAINTIFF vs. CIVIL No. 92-100 HABILITATION CENTER, INC. an Arkansas Corporation d/b/a MILLCREEK OF ARKANSAS; MILLCREEK MANAGEMENT, INC., a Mississippi Corporati~n; DR. JAMES 0. STEPHENS, M.D., (in his individual capacity, and in his official capacities as President and Chainnan of the Bca:d of P.abilitation Center, Inc., and Rehabilitation Centers, Inc. , and as Chairman of the Board o~ Millcreek Management, Inc.); JOSEPH L. STEPHENS, (in his individual capacity, and in his official capacities as Vice President of Habilitation Center, Inc., Rehabilitation centers, Inc., and Millcreek Management, Inc.); BILL SIMMONS, ( in his individual capacity, and in his official capacity as President of Millcreek Management, Inc.); and WAl'~DA MILES-BELL, (in her individual capacity and in her ofticial capacities as Executive Director and General Manager of Millcreek of Arkansas and Vice President of Millcreek Management, Inc.}; DEFENDANTS ORDER on this 31st day of January, 1995, there is presented to the Court the Motions :for Protective Order filed on l:&gt;~half of defendant Habilitation, Millcreek Schools of Arkansas, Inc. and William sutto~. The Attorney G~ner~l ha?ing f~lly responded and the Court being sufficiently advised, having heard arguments of counsel and having fully considered this matter IT rs NOW, THEREFORE, CONSIDERED ORDERED AND ADJUDGED: The office of the Attorney General served a request for records under the Arkansas Freedom of Information Act, .au- Code Ann 25-19-101, et seq., (hereinafter FOIA) upon Mr. William Sutton, custodian of records at the law firm of Friday, E1dredge &amp; PLAINTIFF'S EXHIBIT . 3 - -- 141026/ 041 Clark, attorneys for the defendant Habiiitation Center, Inc. d/b/a Millcreek of Arkansas, seeking the law firm's ~iles relating to Millcreek Schools of Arkansas, Inc. {hereinafter Millcreek Schools) and Habilitation Center, Inc. (hereinafter Habilitation). The requests speci.tically seek "documents, notes,: pleadings, memorandum [sic)_-, work pa:2ers, attorney work papers includinci work product _p::-epc.;:::-e.i, ge~.?::-at~d or re1ai:-ed -to any ~ark done by your fi:r:m for Habilitation Centers, Inc. [sic] or Millcreek Schools of A~kansas, Inc. in State ot Arkansas v. Habilitation centers, Inc., [sic) CIV- 92-100 in Dallas County, Arkansas." The Attorney General served similar FOIA requests on Habilitation and Millcreek Schools of Arkansas, Inc. Jurisdiction and Venue The threshold issue for this Court's determination is whether the Court has jurisdiction to enter the protective orders sought. The plaintiff selected the Dallas County Circuit Court in which to bring the pending case pursuant to Ark. ~ Ann. 16-13-201 and venue was established in accordance with Ark. Code Ann. 16-106- ~CJ.. ( .Cl) .:~r.::.:.c!i.cticn-i.: .this Ccu:rt was t.t1en pro~r; ,:inc! this Court retains that jurisdiction and control over the case pursuant to the a!oresaid statutes. Al though the Freedom of Information Act establishes a separate authority under which information may be obtained under certain circUJ11stances, there is no question but that a FOIA request to a law firm representin9 a defendant in a pending case within the jurisdiction OI this Court is so intertwined with that pending case as to fall within the jurisdiction cf the court. 2 I: 1".Kll&gt;AY .t:;U,Kt;l&gt;li.t &amp; l.LA.Kll. 14JU27 / U41 If the Attorney General akes a FOIA request of a totally separate entity, that .separate entity would not be subject to the jurisdiction of this Court, and the Attorney General would be free to pursue its FOIA request in -whatave:r jurisdiction lUay be perMitted by law. The Attorney General has not named Millcreek Schools of Arkansas, Inc . as a party defendant. The Attorney General has made reference to "Millcreek School of Fordyce, Arkansas, a separate entity owned by defendant, Habilitation" in its first amended complaint. The Court is convinced that Millcreek Schools of Arkansas and Millcreek School of Fordyce, Arkansas, both allegedly owned by Habilitation, should be considered to be the same entity as Habilitation d/b/a Millcreek of Arkansas, and accordingly Millcreek Schools of Arkansas is not truly a separate entity but rather it is an integral part o~ Habilitation. Therefore it, too, comes within the jurisdiction of this Court. In holding that this Court has jurisdiction and is the proper venue to resolve the issues relating to the FOIA, the Court ackncwl&amp;ociges -~'lat i.: is inapp1.~pric1te for 'Che threat of pocential enforcement in another forum to hang over the defendants as they prepare for trial, and it is in the interest of judicial economy to have this court handle all issues relating to the 111atters at hand. Venue is proper only in the circuit court of the judicial district in which the entity is located when the de~endant is an entity which is a private organization even though supported by public funds. Here, all the FO!A targets are such private 3 I I I I I I I .l:'.tUJJ,H .t::U,.t&lt;J:.J.)1,J:. &amp; I...L,UUI. ~028/ 041 organizations resisting the turn over of information pursuant to the FOIA, The 10ere fact that the Attorney General itself is located in Pulaski County and is a state agency does not create venue in that county in these circumstances. standing The detendants' attorneys seek a prot~ctive order in order to protect the attorney/client privilege being asserted on behalf of their clients which include the defendant Habilitation. Habilitation has standing by virtue of being a party litigant in the case brought by the Attorney General. The law finn of Friday, Eldredge &amp; Clark has standing to seek a protective order since it represents HabilitatioTI. Habilitation is Not Subject to the FOIA. The major issue is whether Habilitation center, Inc. is an entity subject to the FOIA. If it is, its attorney's files may be discoverable under FOIA. It is settled under Arkansas law that attorney work product and records are not per se exempt from FOIA disclosure under Ark. Code Ann. 25-19-105. See Scott v. smith, 2-92 -Ark. 174, 728 S'.W.2d 515 {1.987), Arkansas Highway Department v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988) and City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). Although a court hearing a FOIA enforcement action may not issue a protective order under that section to protect in~ormation otherwise subject to disclosure,1 nevertheless, the trial court is 1Ark. Newspa~er. Inc. v. Patterson, 281 Ark. 213, 262 S.W.2d 826 (1994), city or Fayetteviile v. Edmark, supra, at page 193. 4 ll)029 / 041 able to create an exemption !ram the FOIA as authorized by~~ film. 25-19-105 (b) (8) since the limitations on protective orders do not apply to trial courts. The threshold issue, ho--wever, is whether FOIA even applies in the situation before the Court. In order to make that detennination, the Court 1nust decide whether the materials sought by the Attorney General are public records within the l!leaning of the FOIA. 2 Habi1itation is a privately owned for-profit entity receiving Medicaid funds; it is not a government agency. Given the facts of this situation, it :may be an "other agency" subject to the FOIA because it is "wholly or partially supported by public funds or expending public funds." Courts have enforced FOIA requests to particular private entities when they are "Wholly or partially supported by public funds or expending public funds. 1 This Court has also considered a number 2Ark. ~ Ann. 25-19-103 (1) provides in pertinent pa:rt, "PUblic records means writings, recorded sounds, fil1ns, tapes or data, compilations in any form required by law to be kept or otherwise kept and which constitute a record of the performance or lack of performance of official f~nctions which are or should be carried out by a "public official or an employee or government m:: any other agency wholly or partially supported by public funds o~ e::9endinc;: public funds , .n (emphasis suppliedJ 3See North Central Association of Colleges and Schools v. Trout :srothers. Inc., 261 Ark. 378, 548 S.W.2d 285 (1977); Arkansas Gazette company v. southern state College, 273 Ark. 248, 620 s.W.2d 258 (1981), app. dismissed 455 U.S. 931 (1982); and Behab Hospital Services corp. v. Delta Hills Health System5 Agency. Inc., 285 Ark. 397 687 S. W. 2d 840 (1985). The first two of the cited cases indicate the factors that must be present before a private entity will be subject to the FOIA. First, there must be direct publ.ic funding. Secondly, there must be indirect public support. Third, there must be public concern with respect to the organization's activities. The primary source of funding being governmental and the serving of a public - purpose_ . Day subject the private organization to the FOIA. Rehab Hospital Services Corp. supra. Recently the Arkansas supreme court has declared that public funds 5 .HUVA~ ELDREDGl:: &amp; Cl.ARK Ill 030/ 041 of Attorney General's opinions which are not binding as precedent, but which are instructive. The Attorney General has opined that "when the activities of a private organization and the government become so intertwined, the private organization may well render itself part of the state for [FOIA] purposes." Ark. op. No. 83- 163. In that opinion, the AG opined that the mere re.ceipt of Medicare and Medicaid funds by a private nonprofit hospital or a for-profit investor owned facility would not trigger the FOIA. More recently, the Attorney General has opined that the mere receipt of public funds is not in itself sufficient to bring a private organization within the FOIA; rather, the question is whether the private entity carries on public business or is otherwise intertwined with the activities of the government. Ark. Op. AG No. 94-131 (May 13, 1994), citing City of Fayetteville v. Edmark, supra, (1990) and Op. AG Nos. 91-131, 94-154 and 83-163. Here both Habilitation and Millcreek Schools do not conduct their activities with or ror the benefit of or in the place of any public agency. Neither is established by lav. Neither is any more regulated -or supervised 1:han hospitals or nursing homes or schools. No govermnental authority is at Habilitation nor is any Habilitation employee located in any government office. Habilitation deter111ines the programs for the chil.dren, not the State. include only direct public tunding, not indirect support. Sebastian City Chapter ot the American Red cross v. Weatherford, 311 Ark. 656 (845) S.W.2d 641 (1993). 6 ~031/041 Habilitation and Millcreek are engaged in the private rendering of Medicaid and other Medicaid eligible services to private individuals. People performing these services are not public officials. Habilitation is providing Medicaid and other services pursuant to a standard form contract, not making public policy. Even though all or a substantial part ofits incoine is derived !romthe government, it is being paid only for services and is not being subsidized as an extension of government. These facts do not lead to the conclusion that Habiliation and Millcreek are so connected or intertwined as to bring them within the purview of FOIA disclosure. After evaluating the facts and in light of preceden~, the Court finds that Habilitation and Millcreek are not private entities subject to the FOIA. While the l.ine limiting the reach ot FOIA is not bright and while the FOIA is to be liberally construed for disclosure of records in the public domain, Ragland v. Yeargen, 288 Ark. Bl, 702 S.W.2d 23 (1986), the tacts in this case cannot justify a conclusion that "public business" was or is being conducted by Habilitation. The intent of t.._e legislature was to expose the per.formance o:f public o:ificials and or the decisions that are reached in public activity and in making public polic;y. While the public at large as electors do have an interest in how the Medicaid progral!l is being conducted and should haYe access to all agency recoxds relating thereto, including those supplied by Habil.itation under its contract, they have no overriding interest in how a private service provider renders its services to private 7 (OJ..!/041 - individuals. There silllply is no legal precedent or suggestion that it was the intent of the legislature to subject the private activities and all licensed entities and individuals to public scrutiny under the FOIA. Thus it is the decision of this Court that Habilitation is not subject to tbe FO~A; Friday, Eldredge &amp; Clark is Not Subject to the FOIA Additionally, the court also finds that Friday, Eldrecge &amp; Clark is not subject to FOIA. It is an obviously private entity receiving no obvious public funds, and its clients are not a public entity. The court believes that the Attorney General I s FOIA request to Habilitation and Friday, Eldredge &amp; Clark is discovery abuse. Defendants and their counsel are entitled to protection to 111aintain the integrity of the discovery process set out in the Arkansas Rules of Civil Procedure. Unauthorized access to attorney/client or attorney/work product privileged material can deprive defendants of due process. Accordingly, the Court finds that the Motion for Protective Order to protect the FOIA requested material from Habilitation .should be and hereby is granted. Additionally, the protective order is extended to Millcreek of Arkansas, to Millcreek Schools of Arkansas, Inc., to Mil'lcreek School of Fordyce, Arkansas, and to Friday, Eldredge &amp; Clark as attorney to the extent of any materials in any way related to this litigation. The Attorney General may, if it so chooses, amend its complaint with respect to Millcreek Schools of Arkansas, Inc. if it determines that amendment of the name of the defendant is appropriate. -- 8 14] OJJ/ 0 4 1 Ark. Code Ann. 25-19-l0S{b) (8) Exemption The Court rurther finds that even were the defendant subject to the FOIA, the exemption provided in Ark. ~ film 25-19- 105 {b) (8) which expressly exempts "docwnents ~hich .are protected trom disclosure by oraers or rul.es of court" would apply in this case. As the Supreme Court stated in . City of Fayetteville v. Edrnark, su~ra at 191: A trial court has the inherent authority to protect the integrity o! the Court in actions pending before it and may issue appropriate protective orders that would provide FOIA exemption under 25-19-105(b)(8). This Court having underlying jurisdiction over the underlying litigation finds that a protective order should be issued to restrict disclosure ot documents being sought pursuant to FOIA. If there is any subsequent review by any other circuit court - considering related FOIA requests, this protective order is issued specifically within the provisions of Ark. Code Ann. 25-19- 105 (b) (8) to protect from the FOIA materials which otherwise might be disclosable. Id. Other Motions The derendants' Motion to Quash Notice of Depositions is governed by the Written Agreement of the Parties provided to the court in their joint Motion for Continuance. Accordingly, depositions of parties may begin again only as set out in the Agreement. The Attorney General's Motion to Strike Affidavits will be considered ~y the Court when -it receives the plaintiff's Response to the Motion !or SuJ1U11ary Judgment. The defendants' Reply to the 9 ~ U;J4 / U41 Attorney General's Response to the Motion for SWDl11ary Judgment, if any~ will be due within ten business days thereafter. The Attorney General has filed a Motion for Default on Attorney General's Motion to Strike. That Motion i -s denied. Conclusion . IT IS THEREFORE ORDERED that the defendants' Motion be and it hereby is granted. It is further ordered that a protective order be and hereby is issued over all materials sought by the Attorney General under the FOIA unless they are otherwise discoverable or admissible into evidence. The Motion to Quash Notice ot Depositions is hereby granted until otherwise provided in the agreement o~ the parties. The Motion for Default on the Attorney General's Motion to Strike is hereby denied. IT IS SO ORDERED this 1995. ~ day of deJn ~ ~~~ 10 I I I; I UO / l/J / lUU l .10 : 44 .l:iU. :)Ul J 7 tS 21 4 7 FRIDAY ELDREDGE &amp; CLARK Ill 0351 0 41 IN THE UNITED STATES DIS!RICT COURT 1N TIIB EASTERN DISTRICT OF AIU{ANStjJ/tt PINE BLUFF DMSION ~~iL.,;,,L::J:t:~~ ROGER HEATiiSCOTI PLAINTIFF VS. NO. 5:00-CV-00333-WRW UNION PACIFIC RAILROAD CO. DEFENDANT ORDER For the fC3SOQ.S stated in a telephone conference yesterday, the plaintiff's motion (Doc.5) for a protective order is GRAN'IED. Accordingly, defendant must not compel the plaintiff to attend the physical examination scheduled for Februaxy 14, 2001, with Dr. Baskin, M.D., and it must not compel the anendance of the plaintiff at the functional capacity examination scheduled for February 19, 2001. Further, plaintiff must not be disciplined for failing to attend these examinations. I rely primarily upon Smith 11. Union Pacific Railroad Co . 878 F.Supp. J 71 (D.Co. J 995) and Vicary -v. Consolidated Rail Corp., 942 F .Supp. 1146 (N.D. Ohio 1996) whlch seem to be well reasoned. Unlike the plaintiffs in Calvert v. Trans World Airlines, 959 F .2d 698 (8111 Cir. 1992), the plainti:ffhcre unquestionably 1w a separate, independent cause of action under the Federal Employers Liability Act ("FELA") 45 U.S.C. 51 et seq. l believe discovery in the FELA action should proceed under the standard Federal Rules of Civil Procedure. and that these n.tles are not tromped by the defendant's medical examination rules (via the Railway Labor Act 45 U .S.C. 151 et seq.) In fact, under the theory urged by defendant. a railroad could severally hamstring a FELA plaintiff-with company regulations. Defendant contends that 1his order is in the nature of an order "granting, continuing. modifying or dissolving [ an J injwtction'' which would be subject to an interlocutory appeal under ~ PLAINTIFF'S i EXHIBIT i 4 I 287 U.S. C. 1 992. I do not know what authority I have to enhance defendant's right to an interlocutory appeal, but to the extent that I have such authority, 1 grant it: in full. --1+ IT IS SO ORDERED this/ tf/c1ay ofFebnwy, 2001 !~~ UNITED STATES DISTRICT COURT nus DOCUMENT DflcRED ON DOCKlT SHEET 1H CCMPl.lANCc WITH RULE S8 ANOIOII 7,ttJ FflCP ON /b(a, for BY ~L I ~U;J6/ U41 ..' . ,. ... . - .., , - .,; , - v ,... V' -. v A ,-. V V .a. V , V - -1,. "t I rl\.J.V/\..1. .C.J.,J.J~UU.C. ' V.&amp;...l\llA IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION ~UJ7/ U41 LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL DEFENDANTS INTERVENORS INTERVENORS MRS. LORENE JOSHUA, ET AL KATHERINE KNIGIIT, ET AL MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR PROTECTIVE ORDER AND FOR EMERGENCY HEARING LRSD seeks a protective order pursuant to Fed. R Civ. P. 26{c) to prevent unduly burdensome and harassing discovery being conducted by the Joshua Intervenors ("Joshua") via the Arkansas Freedom of Information Act ("FOIA "), Ark Code Ann. 25-19-101 through 25- - 19-110. Rule 26(c) provides: Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith confctrcd or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause 5hown, the court in which the action is pending or alternatively, on mattel'S relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, opprcssio~ or undue burden or expense, including one or more of the following: ( 1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions. including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; ( 4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain mattera; * * r .tu u Al .ta.u .iu:.uur. a. ~ Lt\.KII. There can be no doubt that Joshua is using the FOIA to conduct "discovery." Accordingly, 1his Coun should exercise its power to control discovery as contemplated by the Federal Rules of Civil Procedure. 1@0J8/ 04l The fact that Joshua is using the FOIA, rather than the "'Federal Rules of Civil Procedure, to obtain discovery does prevent this Court from issuing a protective order pursuant to Fed. R Civ. P. 26(c). The FOIA clearly contemplates protective orders being issued to prevent the FOIA from being used to conduct discovery. Section 25-19-105(b)(8) exempts from disclosure "documents which are protected from disclosure by order or rule of court." The Arkansas Supreme Court in City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990), recognized the a trial court's authority to issue a protective order precluding a litigant's use of the FOIA. The court stated: A trial court has the inherent authority to protect the integrity of the court in actions pending before it and may issue appropriate protective orders that would provide FOIA exemption under Section 25-19-105(b)(8) . .. We interpret this section as requiring the circuit court to grant exemption if another court has restricted disclosure of the documents being sought. The FOIA court must give credit to protective orders previously issued by other courts. Id. 304 Ark. at 191, 801 S.W.2d at 275. Following Edmark, both state and federal judges have issued protective orders requiring discovery be conducted pursuant to the applicable rules of civil procedure., rather than the FOIA. See Dr John Mangieri v_ Arkansas State University U.S.D.C. No. J-C-94-140 (August 30, 1994)(attached as Exhibit 2 to Motion) and State of Arkansas v Habi]jtation Center. Inc .. Dallas County Circuit No. 92-100 (Feb. 14, 1995)(attached as Exhibit 3 to Motion). Joshua may argue that FOIA. requests are not "discovery" which may be controlled pursuant to Rule 26( c ). However, Rule 26( c) has been held to apply to all forms of discovery, \ not just the discovery devices created by the Federal Rules of Civil Procedure. In Smith v, Union Pacific R, Co,, 878 F.Supp. 171 (D. Colo. 1995), the railroad. sought to require an employee. Smith, to attend a return-to-work physical pursuant to the railroad's medical rules. When Smith failed to attend, the railroad initiated disciplinary proceedings against Smith. Smith had been off 2 FRIDAY ELDREDGE &amp; CLARK taJ 039 / 0 41 work due to an on-the-job injury and had .filed a FELA suit against the railroad. Smith moved for a protective order to prevent the railroad :from requiring rum to attend the return-to-work physical. The trial court granted the motion stating: To the extent the "back-to-work" physical and ensuing disciplinary proceedings bear on issues relevant to this FELA action and gene.rate .facts or medical opinions that could be used as evidence against Smith, it constitutes "discovery" within the meaning of Fed. R Civ. P. 26(b)(l) and is subject to this court's authority under Rule 26(c) .. . to manage and control as justice requires. See gen~ 8 Wright, Miller &amp; Marcus. Eederal Practice and Procedure: Civil 2d, 2036, pp. 487-88 (1994)(the district court has complete control over the discovery process); I find justice requires entry of a protective order prolu"biting UP from requiring Smith to attend the "back to work" physical at issue and from initiating disciplinary proceedings against Smith based on his failure to so attend. Id. 878 F.Supp. at 173. ~ Vicary v. Consolidated Rail Crup., 942 F.Supp. 1146, 1149 (N.D. Ohio 1996)(following Smith) and Heathscott v. Union Pacific Railroad Co., U.S.D.C. No. 5:00CV00333-WRW (Feb. 16, 200l)(following Smith and~andattached as Exhibit4to Motion). Similarly, to the extent Joshua intends to use LRSD's FOIA response in proceedings before this Court, the FOIA request constitutes discovery subject to this Court's authority under Rule 26(c). See also John Doe Agency v. John Doe Corp., 493 U.S. 146, 153, 110 S.Ct. 471, 476, 107 LEd.2d 462 (1989)("[A] court must be mindful of this Court's observations that the FOIA was not intended to supplement or displace rules of discovery."); Parton v. United States DeJ&gt;'t ofJustice, 727 F.2d 774, 777 (811, Cir. 1984)("Due to the circumstances present in this suit, it is also well to note that it is not the purpose of the [Freedom ofJnformation] Act to benefit private litigants by serving as a supplement to the rules of civil discovery."); Kanter v. Internal Revenue Service, 433 F.Supp. 812, 819 (N.D. Ill. 1977)("Accordingly, the Court finds that the Freedom of Infunnation Act may not be utilized as a means of obt.aining the release of information which would be protected from discovery in a pending or prospective enforcement proceeding."). This court should exercise its discretion under Rule 26(c) to prevent Joshua from using the FOIA to conduct discovery in preparation. .f or the July 2.2 , 2002 hearing in this case. The ' .. ~ parties have already exchanged their witness and exhibit lists pursuant to the Court's scheduling 3 uo 1 ,:.0 1 .:.vu,:. .1.0 : 4 0 l".1\4. ;&gt;U.l J'/1) ;.(.l 4 7 .1-'RIDAY ELDREDGE &amp; CLARK Ill 0 4 01 0 41 order. Thus, additional documents obtained by Joshua from the LRSD will not be admissible at the July 22, 2002 hearing. The breadth of the requests suggests that Joshua's pUipose is to harass the LRSD as LRSD works to prepare for the July 22, 2002 h~aring. _ The burdensome nature of the requests is compounded by the potential criminal penalty (up to 30 days in jail) which could :flow from the LRSD's failure to respond within three days. See Ark. Code Ann. 25-19-104. Furthermo~, simple fairness requires that Joshua and LRSD be required to play by the same rules. While Joshua has 30 days to respond to LRSD's discovery submitted pursuant to Rule 26, LRSD has only three days (at best) to respond to FOIA requests. This provides an unfair advantage to Joshua unrelated to the merits of the underlying case. Joshua should not be permitted to use the FOIA to pressure LRSD by making it impossible for LRSD to go about the business of educating children. ff the integrity of the judicial process is to be maintained, the playing field must be leveled. Joshua should be required to conduct discovery pursuant to the Federal Rules of Civil Procedure. Respectfully Submitted, Christopher Heller (#81083) John C. Fendley, Jr. (#92182) LITTLEROCKSCHOOLDIBTRICT FRIDAY, ELDREDGE &amp; CL.ARK Regions Center, Suite 2000 400 West Capitol Little Rock, AR. 72201-3493 (501) 376-2011 B~ 4 . FRIDAY ELDREDGE &amp; CLARK CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by fax and mail on June 28, 2002: Mr. John W. Walker JOHN W. W Al.KER, P.A. 1723 Broadway Li~e Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Brown Desegregation Monitor 1 Union National Plaza 124 W, Capitol. Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rocle. AR 72201 s 1410 41/041 FRIDAY ELDREDGE &amp; CLARK fAIDAY, ELDREDGE &amp; CLARK A PARTNERSHIP OF INDIVIDUALS ANO PROFESSIONAL CO~PORATIONS ATTORNEYS AT LAW :lOOO t-111~ I t;UMM!:RCIAL BUILDING 4UU Wt:~ I &lt;.,;APITOL AVENUE I.I I I Lt: HUt;K, AHKANSAS 72201-3493 I t:Lt:1-'HUNI:! 501-376-2011 FAX NO. 501-376-2147 THE FOLLOWING PAGES ARE TO: Dr. Ken James 324-2146 FROM: DIRECT NUMBER MESSAGE.: Richard Roachell 224-4409 Dennis R. Hansen 682-8084 Steve Jones 375-1027 Sam Jones 376-9442 rhris Heller 370-1506 TOTAL NO . nF PZl.r.l-!~ n.1/"'r.rmn.m Tl.l'TC! !NFOP~AT!ON SF.BET: fl DATE: June 28. 2002 TIME: ____ ____ __ .A.M./P.M. IP YOU DO NOT RECEIVE ALL THE PAGES - PLEASE CALL BACK ASAP (501) 370-1444 Brenda ~001/041 FOR OFFICE USE ONLY: ____________ H_I~2=3~~---9~0'-------- CLIENT NUMBER MATTER NUMBER CONFI DENTI .ALIT'z NOXE: The information in this facsimile eransmittal is legally privileged and confidential in~onnation illeepded only or the use of the .individual or ent:..ity named above. Iz the rei,.der of this message .iB not the intended r ecipient, you u-a hereby notified chac any dissemination, distribucion or copy of the transmittal i3 3triccly prohibited- If you receive z:hig transmittal in errgr, please i mmdiacely notify us by t:elephone, a.nd return the original transmittal to us &amp;t t:he above address via the United States Postal Service _ Thank you. This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.</dcterms_description>

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